710 Long Ridge Operating Co. II v. Stebbins, 35937.
| Decision Date | 07 October 2014 |
| Docket Number | No. 35937.,35937. |
| Court | Connecticut Court of Appeals |
| Parties | 710 LONG RIDGE OPERATING COMPANY II, LLC v. Randolph STEBBINS. |
153 Conn.App. 288
101 A.3d 292
710 LONG RIDGE OPERATING COMPANY II, LLC
v.
Randolph STEBBINS.
No. 35937.
Appellate Court of Connecticut.
Argued April 23, 2014.
Decided Oct. 7, 2014.
Anne Jasorkowski, with whom, on the brief, was Angelo Maragos, Norwalk, for the appellant (plaintiff).
Edward Kanowitz, for the appellee (defendant).
BEAR, SHELDON and LAVERY, Js.*
Opinion
LAVERY, J.
The plaintiff, 710 Long Ridge Operating Company II, LLC, appeals from the judgment of the trial court dismissing its action against the defendant, Randolph Stebbins. On appeal, the plaintiff claims that the court did not have authority to dismiss the action
after judgment had been rendered in the action. We reverse the judgment of the trial court.
The following facts and procedural history are relevant to this appeal. Because in this appeal we review the trial court's ruling on a motion to dismiss, we take the facts to be those alleged in the complaint, construing them in a manner most favorable to the plaintiff. See Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 132, 918 A.2d 880 (2007) ; see also Sullins v. Rodriguez, 281 Conn. 128, 131–32, 913 A.2d 415 (2007). On December 26, 2012, the plaintiff filed an amended complaint against the defendant, docket number FST–CV12–6016072–S, alleging breach of contract (first action). In its complaint, the plaintiff, a licensed operator of a chronic care and convalescent facility, alleged that the defendant failed to satisfy the terms of an admissions agreement pertaining to his stepfather, Robert Scanlon. The plaintiff served the defendant with the summons and complaint; however, the plaintiff was late in returning service to the court, exceeding the two month time limit imposed by General Statutes § 52–48(b). The defendant's counsel “declined to reply to [the plaintiff's counsel] after numerous weeks,” and, accordingly, the plaintiff was unable to obtain the defendant's waiver of the defective service and to proceed with the first action.
Accordingly, on February 20, 2013, the plaintiff commenced the present second action against the defendant, docket number FST–CV13–6017386–S, by serving him with a new summons and complaint (second action). It is undisputed that the first action and the second action contained identical allegations. On March 19, 2013, the plaintiff filed, in the second action, a motion for default for failure to appear in accordance with Practice Book § 17–25.1 On March 26, 2013, the
court, Mintz, J., rendered judgment against the defendant. The court ordered the defendant to pay damages, interest, attorney's fees, costs, and postjudgment interest to the plaintiff.
On May 20, 2013, the defendant filed “a motion to dismiss the plaintiff's judgment” pursuant to Practice Book (2013) § 10–30.2 The defendant did not file a motion to open or set aside the judgment, as provided for by our rules of practice.3 On May 23, 2013, after receipt of the defendant's motion to dismiss and before any hearing
or ruling by the court on that motion, the plaintiff withdrew the first action.4
On July 22, 2013, a hearing was held on the motion to dismiss. On that date, neither the first nor the second action was “pending.” See footnote 7 of this opinion. The court compared the pleadings of the first action with those of the second action. The court took judicial notice of the contents of the prior pending file.5 The
court noted that “as of May 17, 2012 and May 20, 2013 ... the two actions were pending at the same time.” The court then determined that the allegations in the first complaint were “identical” to the allegations in the second complaint. The court concluded that, accordingly, it “had the power to dismiss [the second action] on May 17, 2013, because there were two lawsuits that were pending at the identical time.” The defendant did not file a motion to open or set aside the judgment in the second action, nor did he file any affidavits setting forth good cause to open or set aside that judgment.6 During the hearing, the court acknowledged that it may have been procedurally incorrect for the defendant to file a motion to dismiss rather than a motion to open the judgment. The court asked whether the plaintiff would consent to opening the judgment if the defendant filed a motion to open; the plaintiff's counsel declined to do so. The court, Hon. Kevin Tierney, judge trial referee, did not open or set aside the default judgment before granting the defendant's motion to dismiss the second action based on the prior pending action doctrine. This appeal followed.
On appeal, the plaintiff claims that the court did not have authority to dismiss the second action after judgment had been rendered in that action. We agree.
As a preliminary matter, we set forth the standard of review. “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.... [O]ur review of the trial court's ultimate legal conclusion and resulting [decision to] grant ... the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Beecher v. Mohegan
Tribe of Indians of Connecticut, supra, 282 Conn. at 134, 918 A.2d 880.
The defendant argues that the pendency of the first action deprived the court of subject matter jurisdiction. The defendant further claims that his filing of a motion to dismiss was proper because, as articulated by the court, subject matter jurisdiction issues arising from a prior pending action “can be raised at any time regardless of the rules relating to the practice book.” We disagree. Even if the prior pending action doctrine were applicable to this case, it would not implicate the subject matter jurisdiction of the court.7 “[W]e observe that
‘although a motion to dismiss is the proper vehicle to raise the issue of a prior pending action, the doctrine does not truly implicate subject matter jurisdiction.’ Gaudio v. Gaudio, [23 Conn.App. 287, 294, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990) ]; see also Halpern v. Board of Education, [196 Conn. 647, 652 n. 4, 495 A.2d 264 (1985) ]; In re Jessica M., [71 Conn.App. 417, 426–27, 802 A.2d 197 (2002) ] (declining to review claim raising prior pending action doctrine for first time on appeal, because subject matter jurisdiction not implicated).” Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009).
“While...
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