Bellman v. Town of West Hartford

• Decision Date: 04 July 2006
• Docket Number: No. 26431.,No. 26082.,26082.,26431.
• Parties: Nancy BELLMAN v. TOWN OF WEST HARTFORD.
• Court: Connecticut Court of Appeals

900 A.2d 82

96 Conn.App. 387

Nancy BELLMAN v. TOWN OF WEST HARTFORD.

No. 26082.

No. 26431.

Appellate Court of Connecticut.

Argued April 17, 2006.

Decided July 4, 2006.

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Kristen Schultze Greene, with whom, on the brief, was Michael Feldman, Farmington, for the appellant (plaintiff).

Lisa A. Bunnell, for the appellant (intervening plaintiff).

Regen O'Malley, with whom were James V. Somers and, on the brief, Carl R. Ficks, Jr., Hartford, for the appellee (defendant).

DiPENTIMA, McLACHLAN and HENNESSY, Js.

McLACHLAN, J.

The plaintiff, Nancy Bellman, and the intervening plaintiff, the Young Women's Christian Association of Greater Hartford, each appeal from the judgment rendered following the trial court's granting of two separate motions filed by the defendant, the town of West Hartford. The defendant filed a motion for summary judgment against the plaintiff, claiming lack of subject matter jurisdiction, which the trial court treated as a motion to dismiss. After the court granted that motion, the defendant filed a motion to dismiss the intervening plaintiff's action, claiming that the derivative action could not be sustained without the underlying cause of action. The court also granted that motion. The plaintiff and the intervening plaintiff filed separate appeals, which were consolidated by this court. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. At approximately 6:45 a.m. on the morning of January 7, 2002, the plaintiff fell on property located at the Elmwood Community Center in West Hartford. The plaintiff, a day care worker at the community center, was employed by the intervening plaintiff and was on her way to work when she fell. She claimed and received workers' compensation benefits for which the intervening plaintiff seeks reimbursement. The plaintiff commenced this action against the defendant for her injuries, claiming that it owned and was in possession and control of the community center. In her complaint, dated October 18, 2003, she alleged that she slipped and fell on the driveway, and that the defendant was negligent because it allowed snow and ice "to remain in the driveway and walkways of the premises" and failed "to plow and salt or sand the driveway" within a reasonable period of time following a winter storm. The intervening plaintiff filed a motion to intervene, which was granted by the court. Subsequently, the defendant filed a motion for summary judgment against the plaintiff. It claimed that General Statutes § 13a-149,¹ the highway defect statute, was the exclusive remedy for personal injuries resulting from a defective road or bridge and that the plaintiff's failure to comply with the notice requirements in the statute deprived the court of subject matter jurisdiction.

The plaintiff filed a memorandum of law and affidavits in opposition to the defendant's motion for summary judgment and, on the same day, filed a request for leave to amend her complaint. The request indicated that the amendment was necessary "in order to accurately describe the location of the plaintiff's fall." The proposed amended complaint alleged that the plaintiff slipped and fell "after parking her car in the parking lot in the rear of the Elmwood Community Center, and proceeding to a rear private entrance." It further alleged that the defendant was negligent because it allowed snow and ice to remain "in the area between the parking lot and private entrance of the premises," and failed to plow and salt or sand "the area between the parking lot and private entrance" within a reasonable time following a winter storm. The defendant filed an objection to the plaintiff's request for leave to amend her complaint, claiming that the proposed amendment set forth a new and different cause of action.

On June 8, 2004, a hearing was held on the motion for summary judgment and the objection to the request to amend the complaint. The court issued its memorandum of decision on October 14, 2004, in which it treated the defendant's motion for summary judgment as a motion to dismiss and dismissed the plaintiff's action for lack of subject matter jurisdiction.² Having dismissed the action, the court concluded that it was without authority to act on the plaintiff's request to amend her complaint. The plaintiff appealed from that dismissal.

On December 10, 2004, the defendant filed a motion to dismiss the intervening plaintiff's action. The defendant argued that because the plaintiff's claim had been dismissed for lack of subject matter jurisdiction, the intervening plaintiff's derivative claim likewise had to be dismissed. The court agreed and granted the defendant's motion to dismiss on March 3, 2005. The intervening plaintiff appealed from that dismissal. Both appeals were consolidated by this court by order dated February 14, 2006.

On appeal, the plaintiff claims that the court improperly (1) concluded that the plaintiff's claim was governed by § 13a-149 based solely on the allegations in the complaint, (2) treated the defendant's motion for summary judgment as a motion to dismiss, (3) failed to hold an evidentiary hearing, (4) concluded that the defendant did not receive notice of the plaintiff's injuries within ninety days of the incident and (5) failed to rule on the plaintiff's request to amend her complaint before addressing the defendant's motion for summary judgment. We conclude that the court should have held an evidentiary hearing when it decided to treat the defendant's motion for summary judgment as a motion to dismiss and, accordingly, reverse the judgment of the trial court dismissing the plaintiff's action.³

The defendant moved for summary judgment, claiming that the plaintiff's only redress for her alleged injuries was pursuant to § 13a-149, that she failed to give the notice to the defendant as required by that statute and that the failure to comply with the notice requirements deprived the court of subject matter jurisdiction. Having raised an issue of subject matter jurisdiction, the court was obligated to address it. "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 objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . 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.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429-30, 829 A.2d 801 (2003). "[A]s soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made." Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).

Accordingly, the court appropriately decided the jurisdictional issue before addressing the plaintiff's request to amend her complaint. In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action. Practice Book § 10-31(a) provides in relevant part: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter. . . . This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."

"Although subject matter jurisdiction may be challenged at any stage of the proceedings, it has been addressed almost exclusively through a motion to dismiss.⁴ 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. . . . When a. . . 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.) Manifold v. Ragaglia, 94 Conn.App. 103, 117, 891 A.2d 106 (2006).

Having determined that the court properly addressed the jurisdictional issue first and properly treated the defendant's motion for summary judgment as a motion to dismiss, we next address the claim that the court improperly concluded that the plaintiff's cause of action was governed by § 13a-149, the highway defect statute. The complaint and the proposed amended complaint contained no statutory reference. The plaintiff claimed in her objection to the summary judgment motion that her cause of action was in negligence pursuant to General Statutes § 52-557n.⁵ Even if a plaintiff does not plead § 13a-149 as a means for recovery, if the allegations in the complaint and any affidavits or other uncontroverted evidence necessarily invoke the defective highway statute, the plaintiff's exclusive remedy is § 13a-149. If § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction. See Ferreira v. Pringle, 255 Conn. 330, 340, 766 A.2d 400 (2001).

"We have construed § 52-557n. . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute [§ 13a-149] is the plaintiff's exclusive remedy." Id., at 341, 766...