Tameil Gibson v. 1468 (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (# 107)

Nature of the Proceedings

Pursuant to Practice Book §§ 10–30, 10–31(a)(1), the defendant, Fourteen–Sixty–Eight Oak Ridge Condominium Association, moves to dismiss the plaintiff's complaint, dated July 25, 2013.   The defendant claims that the court is without subject jurisdiction because the plaintiff's complaint—brought pursuant to § 52–592—was untimely.

The plaintiff objects and asserts that the instant action was recommenced within the time period required by law.   Both parties submitted memorandums and argument on the motion was heard in February 3, 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.)  Bacon Construction Co. v. Dept. Of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).   The purpose of the motion is to attack the “jurisdiction of the court [by asserting] that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  Directory Assistants, Inc. v. Big Country Vein, L.P., 134 Conn.App. 415, 419, 39 A.3d 777 (2012).   A motion to dismiss “admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  Gold v. Rowland, 296 Conn. 186, 200–01, 994 A.2d 106 (2010).

Whether or not a plaintiff has met the requirements of § 52–592 implicates this Court's subject matter jurisdiction.   See Worth v. Commissioner of Transportation, 135 Conn.App. 506, 513–16, 43 A.3d 199 (2012), cert. denied, 305 Conn. 919, 47 A.3d 389.

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

At oral argument, the chronology of events related to the action now before the court was not seriously in dispute.   On October 18, 2010, the plaintiff filed his initial complaint, with a docket number of CV10 6016194 (First Action).   On April 27, 2012, the First Action was dismissed by the court (Silbert, J.) due to the failure of the plaintiff to attend a status conference.   The parties were notified of the court's order on April 30, 2012.

Thereafter, on October 4, 2012, the plaintiff moved to open the judgment.   The court, (Robinson, J.) denied the motion, finding that since it was not filed within four months of receiving notice of the dismissal, it was untimely.   This court concludes that Judge Robinson found that the plaintiff received notice of the dismissal on or about April 30, 2012.

The instant action was commenced on July 25, 2013.   Since Judge Robinson found that the prior suit was dismissed on April 30, 2012, the instant action was started well over a year later.

The defendant asserts that the instant action should be dismissed because it was not filed within one year after the determination of the original action.

General Statutes § 52–592 provides in part:  “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ․ for any matter of form ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action ․”

An action is not commenced until process is actually served upon the defendant.  Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990).

A party may only use the protection of § 52–592 if the reason for dismissal of the party's prior action was for a “matter of form.”   The Supreme Court held in Ruddock v. Burrows, 243 Conn. 569, 570, 706 A.2d 967 (1998), that whether a dismissal of a prior proceeding permitted a plaintiff recourse under § 52–592, “depends upon the nature and the extent of the conduct that led to the disciplinary dismissal.”   The court further stated, “[w]hether [§ 52–592] applies cannot be decided in a factual vacuum.   To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.”  (Internal quotation marks omitted.)   Id., 576–77.

Whether a parties' actions rise above the level of mistake, inadvertence or excusable neglect is a question of fact to be determined by the circumstances of each case.

The court must make a factual finding that the “prior dismissal was a matter of form in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.   Id. at 577.   The court is not persuaded based on the record presented for it's determination, that the plaintiff's non compliance with a court order was a matter of form.   While recognizing that present counsel was not counsel of record at the time of the dismissal of the prior action on April 30, 2012, the court also observes that the motion to open judgment was not filed within the four-month requirement.   The prior case was dismissed because the plaintiff failed to attend a status conference.   There was nothing presented to this court that evinced merely mistake, inadvertence, or excusable neglect with respect to the plaintiff's burden of establishing the right to avail himself of the statute.

Assuming, arguendo, that the prior action failed for “any matter of form,” the new action still must be commenced within one year after the determination of the original action.

With regard to this requirement, one line of cases stand for the proposition that a matter is “determined” within the meaning of General Statutes § 52–592 when a nonsuit is entered and not when a motion to reopen or to restore is denied.   See McDowell v. Home Depot U.S.A., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 36438 (June 12, 2001, Rush, J.);   Jonas v. Unsmoke Services, Inc., Superior Court, Judicial district of Hartford–New Britain at Hartford, Docket No. 388354 (June 6, 1991, Maloney, J.) 4 Conn. L. Rptr. 137;  Lee v. Phillips, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. 352222 (November 29, 1988, Corrigan, J.) Morrisette v. Archambault, 31 Conn.Sup. 302, 304, 329 A.2d 622 (1973).   Other Superior Court judges have concluded, based on the language in Morelli v. Manpower, Inc., 226 Conn. 831, 628 A.2d 1311 (1993), that a matter is “determined” when the motion to reopen is denied.   See Leonard v. Lucas, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 356286 (December 24, 1998, Skolnick, J.);   Duhig v. Bengston, Superior Court, judicial district of New Haven at Meriden, Docket No. 255822 (March 11, 1997, DiPentima, J.) (19 Conn. L. Rptr. 17);  Polesak v. Medical Laboratory Service, Superior Court, judicial district of Bridgeport at Bridgeport Docket No. 339545 (July 17, 1997, Skolnick, J.) (20 Conn. L. Rptr. 97);  Cipolli v. Miner Hills Family Golf, Superior Court, judicial district of New Haven at Meriden, Docket No. 003413 (December 15, 2008, J. Fischer, J.).

After a careful review of these cases and others, this court is persuaded by the reasoning in the so-called Morrisette v. Archambault line of cases.   As the court in Morrisette observed, to hold otherwise would result in no finality to the judgment because “at anytime, a plaintiff could file a motion to set it aside.”  Morrisette, Supra at 304.   Similarly, in Lee v. Phillips, supra, the court held that “the judgment of nonsuit is such a determination and unless stayed by a timely motion or appeal is final as of the date granted.”   In this case, the motion to set aside the dismissal was not timely, having been filed beyond the four-month limitation, nor was any further action taken from the court's order denying the motion.

For all of the foregoing reasons, the defendant's motion to dismiss is granted.

Vitale, J.

Vitale, Elpedio N., J.