Denise Farina v. Branford Board of Education

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Superior Court of Connecticut.

Denise Farina v. Branford Board of Education

CV105033085S

    Decided: May 27, 2010

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

PROCEDURAL AND FACTUAL BACKGROUND

The plaintiff, Denise Farina, commenced this action by service of process against the defendant, the Branford Board of Education, on December 17, 2009.   The return of service establishes that the marshal served the Branford town clerk.   The basis for the action is the termination of the plaintiff's employment as a tenured teacher by the defendant on November 18, 2009, after ten hearings were held pursuant to General Statutes § 10-151 et seq., the Teacher Tenure Act. The defendant filed the present motion to dismiss and an accompanying memorandum of law on February 9, 2010.   The plaintiff filed an objection to the motion and an accompanying memorandum of law on April 1, 2010.1  The court heard the matter at short calendar on April 5, 2010.   During the short calendar hearing, the defendant submitted a motion to strike an affidavit that accompanies the plaintiff's memorandum.   The ground for the motion is that the affidavit consists of hearsay and legal arguments rather than undisputed facts.   The motion was not filed with the court electronically.

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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).   Insufficiency of service of process is a ground that may be asserted in a motion to dismiss.  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31.  “Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”   (Internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).

“When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.)  State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

The court will first address the defendant's motion to strike the plaintiff's affidavit.   The affidavit is meant to address the issue of whether there is a clerk for the Branford school district.  “Practice Book § 10-39(a) states the purposes for which a motion to strike can be filed.   Those purposes include:  (1) to contest the legal sufficiency of a complaint;  (2) to contest the legal sufficiency of a claim for relief, (3) to raise the issue of the absence of a necessary party;  (4) to raise the issue of the misjoinder of causes of action;  and (5) to contest the legal sufficiency of any answer or special defense.   While the Practice Book does not recognize the use of a motion to strike in other situations, courts have, on occasion, entertained pleadings entitled ‘motions to strike’ seeking such relief.   In Massey v. Branford, 115 Conn.App. 153 (2009), the Appellate Court noted, without adverse comment, the trial court's action in granting defendant's motion to strike the plaintiff's jury list claim.”   Michael James Co., LLC v. Naugatuck Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001586 (November 6, 2009, Tobin, J.) (denying defendant's motion to dismiss affidavit submitted by plaintiff in support of its objection to defendant's motion to dismiss).

The court notes that the motion to strike has not been properly filed because it has not been filed electronically, which has been required since December 9, 2009 of all documents, motions and pleadings in all civil cases in Connecticut.   There are exceptions to the requirement, but the defendant cannot take advantage of any of them.   The court will nonetheless entertain the motion insofar that it raises the issue of the affidavit's credibility, which affects how the court will consider the plaintiff's argument.

In the affidavit, Mica Notz, the senior paralegal of the law firm representing the plaintiff, attests to statements made by “Jane,” who answered the telephone when Notz called the Branford town clerk's office.  “Jane” told Notz that “there is no such thing as a district clerk for the [t]own of Branford” and that “historically all civil matters pertaining to the town or the school district were served upon the [t]own [c]lerk.”   The affidavit consists of hearsay.  “ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.”  Code of Evidence, § 8-1(3).   The majority of the averments in the affidavit rely upon information obtained by Notz through “Jane,” not upon Notz's personal knowledge.

“Although the Connecticut appellate courts have not directly addressed the question of whether an affidavit that is submitted in support of a motion to dismiss must be based on personal knowledge, the trial courts have done so ․ In Winkleman [v. Dohm, Superior Court, judicial district of Waterbury, Docket No. 096682 (April 27, 1992, Barnett, J.) (6 Conn. L. Rptr. 382) ], the court held that an affidavit in support of a motion to dismiss must meet the same requirements of an affidavit in support of a motion for summary judgment ․ The statements contained in the affidavit must be based on personal knowledge ․ The [Winkleman ] court reasoned:  ‘[Section 10-31] allows affidavits as to facts not apparent on the record.   A similar requirement of factual assertions is contained in Practice Book [§ 17-46] dealing with the requirements of an affidavit in motions for summary judgment.   In summary judgment situations, affidavits based on belief and knowledge would clearly be inadequate ․ And the same rule should pertain to motions to dismiss where affidavits are utilized to supply jurisdictional facts ․ Moreover, the very concept of an affidavit is a document stating facts within the knowledge of the affiant.”  (Citations omitted;  internal quotation marks omitted.)   Friends of Animals, Inc. v. United Illuminating Co., Superior Court, judicial district of New Haven, Docket No. CV 06 4018257 (September 20, 2006, Skolnick, J.T.R.).

The court in the present case is persuaded by the reasoning of the court in Winkleman, which has been adopted by other trial courts, and concludes that the affidavit attached to the plaintiff's memorandum is legally insufficient to support her objection to the motion to dismiss.   The affidavit is based upon inadmissible hearsay statements made by the unknown “Jane” and not upon the personal knowledge of the known affiant Notz and is therefore inadequate to serve the purpose of providing “undisputed facts” to which the court may look for “determination of the jurisdictional issue.”   Accordingly, the court accepts the argument made by the defendant in the motion to strike and will not consider the affidavit in deciding the motion to dismiss.

The court will now address the merits of the motion to dismiss.   The defendant argues that “[a] Connecticut board of education acts as a ‘school district’ when it terminates a tenured teacher's employment pursuant to § 10-151(d).”  The defendant reaches this conclusion by first looking to General Statutes § 10-240, which provides that “[e]ach town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts, except so far as such powers and duties are inconsistent with the provisions of this chapter.”   The defendant therefore concludes that § 10-240 establishes that a “board of education” is a “school district” for the purpose of “maintain[ing] the control of all the public schools within its limits.”   The defendant then looks to General Statutes § 10-241, which provides in relevant part:  “Each school district shall be a body corporate and shall have power to [inter alia ] sue and be sued ․ and to employ teachers, in accordance with the provisions of [§ ]10-151 ․” The defendant thus concludes that § 10-241 establishes that a “school district” is the entity that is empowered to act under § 10-151.

The defendant further argues, that since the plaintiff brought the present appeal under § 10-151(e), which provides in relevant part that “[a]ny teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, within thirty days of such decision, to the Superior Court,” she therefore sued the defendant in its capacity as a “school district” and should have served the defendant in accordance with General Statutes § 52-57(b)(4), which provides that “[p]rocess in civil actions against the following-described [class] of defendants shall be served as follows ․ against a school district, upon its clerk or one of its committee.”   The plaintiff, however, served the defendant in its capacity as a “board of education” under General Statutes § 52-57(b)(5), which provides in relevant part that “[p]rocess in civil actions against the following-described [class] of defendants shall be served as follows ․ against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency.”   The defendant therefore argues that the court lacks personal jurisdiction over it because the plaintiff's service of process was improper.   In support of its interpretation of §§ 10-151, 10-240 and 10-241, the defendant references and submits legislative history.

The plaintiff in opposition to the motion argues that the defendant acted as a “board of education” and not a “school district” when it terminated her employment because § 10-151 et seq., which governs both the tenured teacher termination process and the tenured teacher's right to appeal, refers only to a “board of education.”   The plaintiff specifically relies on § 10-151(d) and (e) in bringing her appeal.  Section 10-151(d) provides in relevant part:  “A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated.”   The plaintiff argues that she therefore properly served the defendant under § 52-57(b)(5).   The plaintiff's memorandum contains both her argument in objection to the motion and a request for costs and sanctions to be levied against the defendant on the basis that the motion is frivolous.

The court agrees with the plaintiff on the issue of whether the defendant acted as a “board of education” when it terminated her employment.   First, the plaintiff's reading of § 10-151 et seq. is correct.   There is no reference whatsoever to a “school district” in any of the five subsections of § 10-151.   Second, the defendant's interpretation of § 10-240 and therefore § 10-241 is precluded by the plain and unambiguous language of § 10-240.   Section 10-240 is plain and unambiguous in identifying a “town,” not a “board of education,” as a “school district” for the purpose of “maintain[ing] control of all the public schools within its limits.”   This is evident from the structure of the sentence contained in § 10-240-“[e]ach town” is the only subject phrase, and “shall be a school district” is one of three verb phrases connected to it.  “Its board of education” is not a subject phrase;  it is instead part of a prepositional phrase that describes “each town.”   In other words, the structure of the sentence establishes that a “board of education” is an agent through which a “town” acts when it is a “school district” for the purpose of “maintain[ing] control of all the public schools within its limits.”   Because the language of § 10-240 is plain and unambiguous and does not yield absurd or unworkable results, the court will not consider the legislative history submitted by the defendant.

This decision is consistent with the established standard for statutory interpretation:  “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1-2z 2 directs us first to consider the text of the statute itself and its relationship to the other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”  (Internal quotation marks omitted.)  Cruz v. Montanez, 294 Conn. 357, 367, 984 A.2d 704 (2009).  “The primary rule of statutory construction is that [i]f the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature ․ and thus there is no need to construe the statute.”  (Citations omitted;  internal quotations marks omitted.)  State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984).   A statute “does not become ambiguous merely because the parties contend for differing meanings.”  Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 198, 438 A.2d 1178 (1981).  “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  (Internal quotation marks omitted.)   State v. Marsh & McLennan Cos., supra, 286 Conn. 464-65.

The language of the statutory scheme created by §§ 10-151 and 10-240 is clear.   When § 10-151 is read within the context of § 10-240, the use of the term “board of education” in the former statute is not susceptible to being reasonably interpreted as synonymous with the use of the term “school district” in the latter statute.  Sections 10-151 and 10-240 are therefore plain and unambiguous and not subject to the defendant's interpretation.

In further support of its interpretation of § 10-240, the court looks to Estrella v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200832 (October 21, 2005, Jennings, J.) (40 Conn. L. Rptr. 180).   The Estrella court granted the defendant Stamford board of education's motion to dismiss a personal injury action brought on behalf of a minor student because the defendant was not served in accordance with § 52-57(b)(5).   The plaintiff objected to the motion on the ground that he had properly served the defendant as a “school district” under § 52-57(b)(4).   In support of his argument that the defendant was a “school district” and not a “board of education” for the purpose of service of process, the plaintiff looked to § 10-240.

The court rejected the plaintiff's argument and noted, inter alia, that “the party specified [in § 10-240] as being a school district is ‘[e]ach town.’   “ Id., 40 Conn. L. Rptr. 181.3  It elaborated:  “The [b]oard of [e]ducation is not designated in § 10-240 as a school district, but rather as the agency ‘through’ which a town functions as a school district.   As the Appellate Court has noted, ‘[t]hat there is indeed a difference between a municipal corporation and an agency (be it state, federal or municipal) merits but a brief discussion.’  White Oak Corp. v. Dept. of Consumer Protection, 12 Conn.App. 251, 254-55 n.7 (1987).   The separation and distinction between a town and its [b]oard of [e]ducation has been clearly established.”  Id. The court concluded that a board of education and a town acting as a “school district” under § 10-240 are distinct entities, despite the board of education's status as an agent of the town, and that the two are accordingly governed by distinct standards for service of process- § 52-57(b)(5) for a board of education as a municipal board and § 52-57(b)(4) for a town acting as a school district.

The court in the present case is persuaded by the reasoning of the court in Estrella, given that the defendant in the present case relies upon § 10-240 in the same manner as did the plaintiff in Estrella to argue that a “board of education” is a “school district” for service of process purposes.   This court therefore adopts the Estrella court's reasoning and concludes that § 52-57(b)(4) was not the proper vehicle for service of process upon the defendant.   The town of Branford, whom the plaintiff has not named in the present action, and not the defendant would be the party defined as a “school district” under § 10-240.

The defendant in the present case argues that Estrella was “wrongly decided and should not be persuasive in this court's consideration of the merits of the instant motion” because, inter alia, the Estrella court's interpretation of § 10-240 would render § 52-57(b)(4) superfluous, a result that is against traditional canons of statutory construction.4  Specifically, the defendant argues that the Estrella court's interpretation of § 10-240 eliminates the distinction between a “town” and its “school district” for service of process purposes.   The court in the present case is unpersuaded.   The Estrella court determined:  “[E]ven if § 10-240 were applicable, which it is not for the purposes of this case, the party specified therein as being a school district is ‘[e]ach town.’   In this case the City of Stamford is a separate defendant which has not challenged service of process upon it.   If § 10-240 applied at all it would stand for the proposition that the defendant City of Stamford is a school district subject to service of process under § 52-57(b)(4).”  (Emphasis added.)  Id., 40 Conn. L. Rptr. 181.   The Estrella court supported this conclusion by citing to General Statutes § 7-148, which provides that “a ‘municipality’ includes ‘any town, city or borough.’  “ Id., n.5. Because the city of Stamford qualified as a “municipality” under § 7-148, it qualified as a “town” under § 10-240, and the Estrella court could therefore determine that it would also be a “school district” under § 10-240.   The Estrella court's reasoning therefore does not preclude the use of § 52-57(b)(4) as the standard for service of process upon a school district, because it establishes that a town acting in its capacity as a school district, per § 10-240, should be served under § 52-57(b)(4) and not § 52-57(b)(1), which governs service of process upon towns.   As did the court in Estrella, the court in the present case notes that a “board of education” is an entity that is separate and distinct from a “town” or a “school district” and therefore determines that the standard for service of process upon a “board of education” should likewise be separate and distinct from the standards governing service of process upon a “town” and a “school district,” respectively.   The court in the present case also notes that the holding in Estrella has not been challenged, either on appeal or by another court's analysis of §§ 52-57(b)(4) and (5) and/or 10-240, and therefore concludes that Estrella is dispositive of the issue of whether § 10-240 defines a “board of education” as a “school district.”

Accordingly, for the foregoing reasons, the court denies the motion to dismiss for lack of personal jurisdiction on the ground that the plaintiff should have served the defendant as a “school district” under § 52-57(b)(4).

Finally, the court will address the plaintiff's request for costs and sanctions to be levied against the defendant.   In support of her request, the plaintiff argues that the motion was filed in bad faith for two reasons.   First, she argues that the defendant knows that a clerk for the Branford school district does not exist, because General Statutes § 10-243 provides:  “The town clerk and treasurer of each town shall have all the powers and duties, respectively, of the clerk and treasurer of a school district, except so far as such duties are rendered unnecessary by the provisions of this chapter.”   Second, the motion was filed in order to harass the plaintiff, hinder her effort to litigate her cases against the defendant in federal and state court and prevent her from obtaining copies of the transcripts for the ten termination hearings, to which both she and the court are entitled under § 10-151 et seq.

“[T]he court has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct where there is no specific rule or order of the court that ․ is claimed to have [been] violated.”  Fattibene v. Kealey, 18 Conn.App. 344, 359, 558 A.2d 677 (1989).  “To ensure ․ that fear of an award of attorneys fees against them will not deter persons with colorable claims from pursuing those claims,” an award of sanctions must be based upon “both ‘clear evidence’ that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes ․ and a high degree of specificity in the factual findings” upon which the court premises the award.  Id., 360-61.

“[T]he task of determining whether sanctions should be imposed is inherently fact bound, and requires carefully circumscribed discretion to be exercised by the trial court ․ Good faith pleading must be judged in the light of all the circumstances existing at the time the pleading was filed ․ To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party's use of oppressive tactics or its wilful violation of court orders;  [t]he appropriate focus for the court ․ is the conduct of the party in instigating or maintaining the litigation.”  (Citations omitted;  internal quotation marks omitted.)  Ossen v. Wanat, 21 Conn.App. 40, 47-48, 571 A.2d 134, cert. granted on other grounds, 215 Conn. 804, 574 A.2d 219, aff'd, 217 Conn. 313, 585 A.2d 685 (1990), cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 49 (1991).

The plaintiff in the present case has not presented factual evidence that the court may consider in determining whether the defendant filed the motion to dismiss in bad faith or for the purpose of harassing the plaintiff and hindering her effort to litigate her cases in federal and state court.   Furthermore, the ground for the defendant's motion is legitimately jurisdictional in nature.   The plaintiff's argument that the defendant knows of the nonexistence of the Branford school district clerk is based upon the improper affidavit and the plaintiff's legal conclusions, not upon the facts.   Therefore, the court denies the plaintiff's request for costs and sanctions to be levied against the defendant.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to dismiss and the plaintiff's request for costs and sanctions.

WILSON, J.

FOOTNOTES

FN1. Practice Book § 10-31(b) provides in relevant part:  “Any adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve ․ a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”   The plaintiff's objection was filed less than five days before the short calendar hearing.  “Despite the language of [§ ]10-31(b), most courts have exercised discretion to address the merits of a motion [to dismiss] and to waive the five-day requirement when an opposing memorandum was untimely.”   Southern New England/SBC v. Balf Co., Superior Court, judicial district of New Haven, Docket No. CV 03 0482272 (August 4, 2004, Skolnick, J.) (citing several Superior Court decisions).   The court in the present case will likewise exercise its discretion and waive the five-day requirement in order to address the merits of the motion..  FN1. Practice Book § 10-31(b) provides in relevant part:  “Any adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve ․ a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”   The plaintiff's objection was filed less than five days before the short calendar hearing.  “Despite the language of [§ ]10-31(b), most courts have exercised discretion to address the merits of a motion [to dismiss] and to waive the five-day requirement when an opposing memorandum was untimely.”   Southern New England/SBC v. Balf Co., Superior Court, judicial district of New Haven, Docket No. CV 03 0482272 (August 4, 2004, Skolnick, J.) (citing several Superior Court decisions).   The court in the present case will likewise exercise its discretion and waive the five-day requirement in order to address the merits of the motion.

FN2. General Statutes § 1-2z provides:  “The meaning of a statute shall, in the first instance be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”.  FN2. General Statutes § 1-2z provides:  “The meaning of a statute shall, in the first instance be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

FN3. The Estrella court rejected the plaintiff's argument for three reasons.   Only the second and third reasons are relevant to the present court's analysis.   The second reason was that “the plaintiff ․ made no showing that § 10-240 ․ is still applicable” where “it ha[d] been held that all of what is now Chapter 171 of the Connecticut General Statutes, including § 10-240 and its predecessors, only applies to towns which have not consolidated their historical separate school districts under Chapter 51 of the General Statutes of 1930 and its predecessors.”   Estrella v. Stamford, supra, 40 Conn. L. Rptr. 181.   The third reason was the court's interpretation of § 10-240, discussed infra.   The present court does not look beyond the content of the statute in its analysis because it concludes that § 10-240 on its face does not support the defendant's interpretation.   Therefore, the court need not address the “applicability” prong of the Estrella court's analysis..  FN3. The Estrella court rejected the plaintiff's argument for three reasons.   Only the second and third reasons are relevant to the present court's analysis.   The second reason was that “the plaintiff ․ made no showing that § 10-240 ․ is still applicable” where “it ha[d] been held that all of what is now Chapter 171 of the Connecticut General Statutes, including § 10-240 and its predecessors, only applies to towns which have not consolidated their historical separate school districts under Chapter 51 of the General Statutes of 1930 and its predecessors.”   Estrella v. Stamford, supra, 40 Conn. L. Rptr. 181.   The third reason was the court's interpretation of § 10-240, discussed infra.   The present court does not look beyond the content of the statute in its analysis because it concludes that § 10-240 on its face does not support the defendant's interpretation.   Therefore, the court need not address the “applicability” prong of the Estrella court's analysis.

FN4. As the defendant notes, “[i]t is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions ․ Accordingly, care must be taken to effectuate all provisions of the statute.”  Bridgeport Hospital v. Commission on Human Rights and Opportunities, 232 Conn. 91, 100, 653 A.2d 782 (1995)..  FN4. As the defendant notes, “[i]t is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions ․ Accordingly, care must be taken to effectuate all provisions of the statute.”  Bridgeport Hospital v. Commission on Human Rights and Opportunities, 232 Conn. 91, 100, 653 A.2d 782 (1995).

Wilson, Robin L., J.

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