Michael Bandlow et al. v. LLC (2015)

RULING ON MOTION TO DISMISS FILED BY THE DEFENDANT, ADAMS

This case is an action by the plaintiffs, Michael Bandlow and Attorney Michele Palulis, administrators of the estate of Ava Auger, and Attorney Michele Palulis, administratrix of the estate of Alexis Auger, against several defendants, for the wrongful death of plaintiffs' decedents who perished in a fire at their apartment on January 22, 2013.  One of the defendants, named in the Third and Sixth Counts of the complaint, is the former receiver of rents allegedly in possession of the property at the time of the fire, which the plaintiffs identify as “Stephen J. Adams and Stephen J. Adams, Receiver for Town of Putnam Water Pollution Control Authority” (“Adams”).  Pending before the court is a motion to dismiss (Doc. No. 130.00) filed by the defendant, Adams, on the grounds that the court lacks subject matter jurisdiction over the claims against him because the plaintiffs can only proceed against him if they have permission to sue from the court that appointed him as the receiver.  Since the plaintiffs have never sought such permission, the case should be dismissed, the defendant argues.  The court agrees with the defendant.  Accordingly, the motion to dismiss is granted.

I

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted;  citation omitted.)  RC Equity Group, LLC v. Zoning Commission of Borough of Newton, 285 Conn. 240, 248, 939 A.2d 1122 (2008).

“Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”  (Internal quotation marks omitted;  citation omitted.)  Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008).

“[I]n ruling [on] whether a complaint survives a motion to dismiss, 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;  citation omitted.)  Windels v. Environmental Protection Commission, 284 Conn. 268, 290, 933 A.2d 256 (2007).  Where subject matter jurisdiction is involved, it may also consider any affidavits or other uncontroverted evidence and even conduct an evidentiary hearing when appropriate.  See, e.g., Fennelly v. Norton, 103 Conn.App. 125, 139 n.11, 931 A.2d 269 (2007), cert. denied, 284 Conn. 918, 931 A.2d 936 (2007);  Bellman v. Town of West Hartford, 96 Conn.App. 387, 394, 900 A.2d 82 (2006);  Manifold v. Ragaglia, 94 Conn.App. 103, 121, 891 A.2d 106 (2006).  “[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted;  citations omitted.)  Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).

A failure to obtain permission to sue a receiver, where permission is a necessary prerequisite to suit, calls into question the court's subject matter jurisdiction to hear the cause.  Tucker v. Hartford Electric Light Company, 13 Conn.App. 825, 826, 539 A.2d 148, cert. denied, 207 Conn. 811, 541 A.2d 1241 (1988) (rejecting, per curiam, an argument that the trial court erred in finding lack of subject matter jurisdiction due to plaintiff's failure to obtain permission to sue);  DeJesus v. Smith, Superior Court, judicial district of Windham, Doc. No. CV–063771 (April 18, 2001, Foley, J.) [29 Conn. L. Rptr. 689];  Multi–Service, Inc. v. First Union Bank, Superior Court, judicial district of Fairfield, Doc. No. CV 97–0342492 (January 13, 2000, Skolnick, J.) [26 Conn. L. Rptr. 266];  cf.  Sherwood v. New England Knitting Co., 68 Conn. 543, 37 A.2d 388 (1897).

II

In this case, the record reflects that the defendant, Adams, applied for and was appointed receiver of rents for the subject property, located at 8 Prospect Street, Putnam, CT, by the Superior Court for the Windham Judicial District by order dated March 30, 2012 pursuant to General Statutes § 16–262t due to delinquency in payment of water and sewer charges to the Putnam Water Pollution Control Authority.  See Town of Putman Water Pollution Control Authority v. Eastern Connecticut Contractors, LLC, No. WWM CV 12–5005739 (Doc. No. 101.10).  The defendant argues, first, that the above captioned case must be dismissed because the plaintiff must receive permission from the Superior Court for the Windham Judicial District—the appointing court—before the receiver can be sued, and the plaintiff has failed to seek or obtain such necessary permission.  The court agrees.

“A receiver appointed by judicial authority cannot, in the absence of a statute to the contrary, be subjected to suit without the leave of the court whose officer he is, granted in the cause in which he was appointed ․ the policy of requiring application for permission to bring suit against the receiver in the original court is so firmly established in this State that a change in that policy should be enunciated either by our Supreme Court or prescribed by statute.”  (Citations omitted, internal quotation marks omitted.)  Tucker v. American Ins. Co., 3 Conn.App. 397, 399, 488 A.2d 1278, cert. denied, 196 Conn. 802, 492 A.2d 1239 (1985).  “[W]here a court has once acquired jurisdiction over a particular subject matter, it retains it free from interference by any other ․” Links v. Connecticut River Banking Co., 66 Conn. 277, 284, 33 A. 1003 (1895).  “If a receiver neglects to perform the duties required of him, the proper procedure is to petition the court for his removal ․ A receiver may also be subject to suit, but only with the permission of the court.”  (Citations omitted.)  Hartford Federal Savings & Loan Ass'n v. Tucker, 196 Conn. 172, 178, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985).  Thus, absent permission to sue, a trial court should grant a motion to dismiss the plaintiff's complaint.  See, e.g., Tucker v. American Ins. Co., supra;  accord Harvey v. Investing Management Associates, Superior Court, judicial district of Windham, Doc. No. CV_–066413 (July 2, 2002, Foley, J.) [32 Conn. L. Rptr. 450];  DeJesus v. Smith, supra;  Pip's, Inc. v. Westford Asset Management, Superior Court, judicial district of New Haven, Doc. No. CV 96–027368 (February 9, 1996, Jones, J.) [16 Conn. L. Rptr. 400];  c.f. Stevens v. Helming, Superior Court, judicial district of New Haven, Doc. No. CV 11–6019393 (February 10, 2012, Wilson, J.) [53 Conn. L. Rptr. 524].  “[T]he question of whether a court will permit its receiver to be sued is largely a matter of discretion.”  (Citation omitted, internal quotation marks omitted.)  Summerbrook West, L.C. v. Foston, 56 Conn.App. 339, 344, 742 A.2d 831 (2000).

Plaintiffs object to dismissal on the grounds that no such procedure is available to them in this instance because, after the fire, the receiver was removed on February 25, 2013, and the receivership case was withdrawn on September 24, 2013.  The record reflects the receiver was so removed and the case withdrawn.  See Town of Putman Water Pollution Control Authority v. Eastern Connecticut Contractors, LLC, supra, (Doc. Nos. 102.10 and 117.00).  Plaintiffs claim that they have been informed by the Windham Judicial District clerk's office that there is no procedure for filing a motion for permission to sue a receiver in a closed file.  The court is not persuaded.  The plaintiffs can file a motion to intervene and a motion to restore the case to the docket and a motion for permission to sue.  In fact, the defendant, through counsel, agreed that those procedures are available and that he would not oppose the motion to intervene or motion to restore the case to the docket for purposes of filing a motion for permission to sue;  rather, he would oppose the request for permission to sue.  Of course, the ultimate dispositions of any such motions would be made by the Superior Court for the Windham Judicial District as it finds appropriate.

The plaintiffs also argue that the pertinent substantive law prevents them from seeking permission to sue a receivership that has been terminated, citing Porter v. Sabin, 149 U.S. 473, 13 S.Ct. 1008, 37 L.Ed. 815 (1893).  Again, the court is not persuaded.  That case states that “Until the administration of the estate has been completed and the receivership terminated, no court of one government can by collateral suit assume to deal with rights of property or of action, constituting part of the estate within the exclusive jurisdiction and control of the courts of the other.”  Id., 480.  There having never been a resolution of the issue of whether the plaintiffs can sue the receiver by the court with jurisdiction and control over the issue, the administration of the estate has not been completed and the collateral suit bar remains in effect.  For the same reason, the termination of the receivership does not excuse the need for the plaintiff to obtain permission to sue.  Accordingly, in Tucker v. Hartford Electric Light Company, supra, 13 Conn.App. 826, our Appellate Court specifically rejected, per curiam, an argument that permission to sue a receiver is unnecessary after the receivership has been terminated.  See, generally, 65 Am.Jur.2d Receivers (2011) § 405 (where receiver discharged and relieved from liability, he or she may not be sued until appointing authority vacates its order discharging him or her and grants permission to sue).

Alternatively, the defendant argues that this case should be dismissed for lack of subject matter jurisdiction because the defendant is protected by absolute quasi-judicial immunity under the circumstances in this case because, having been appointed by the court to be the receiver, he is an “arm of the court,” citing New Haven Savings Bank v General Finance & Mortgage Co., 170 Conn. 268, 270, 386 A.2d 230 (1978).  Inasmuch as the court has determined to dismiss this case on the grounds that the plaintiffs have not yet received permission to sue, resolution of the defendants' purported absolute immunity defense would be premature at this time.  Accordingly, it is unnecessary to resolve that issue at this time.

III

For all of the foregoing reasons, the defendant's motion to dismiss (Doc. No. 130.00) is granted.  Judgment dismissing Counts Three and Six of the plaintiffs' complaint as to the defendant, Stephen J. Adams and Stephen J. Adams, Receiver for Town of Putnam Water Pollution Control Authority, shall enter accordingly.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.