Dorry v. Garden

• Decision Date: 09 September 2014
• Docket Number: No. 19191.,19191.
• Court: Connecticut Supreme Court
• Parties: Karen DORRY, Administratrix (Estate of Jerome Dorry), et al. v. Mitchell S. GARDEN et al.

313 Conn. 516

98 A.3d 55

Karen DORRY, Administratrix (Estate of Jerome Dorry), et al.

v.Mitchell S. GARDEN et al.

No. 19191.

Supreme Court of Connecticut.

Argued April 24, 2014.

Decided Sept. 9, 2014.

Vincent M. DeAngelo, Hartford, with whom was Robert V. Fallarino, pro hac vice, for the appellants (plaintiffs).

Michael R. McPherson, with whom, on the brief, was Edward W. Mayer, Jr., for the appellee (named defendant).

Diana M. Carlino and James B. Rosenblum, Stamford, filed a brief for the appellees (defendant Stella Danica–Aaboe et al.).

Lorinda S. Coon, Hartford, and Paul T. Nowosadko, Hartford, filed a brief for the appellee (defendant Jeffrey R. Sanderson).

Laura Pascale Zaino and Timothy J. Grady, Hartford, filed a brief for the appellee (defendant Peter H. Wilson).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ROBINSON, Js.

EVELEIGH, J.

In this wrongful death action, the plaintiff Karen Dorry, administratrix of the estate of Jerome Dorry (decedent),¹ appeals ² from the judgment of the trial court dismissing the action against the defendants Mitchell S. Garden, Peter H. Wilson, Jeffrey R. Sanderson, Stella Danica–Aaboe, and Jennifer Carroll.³ In dismissing the plaintiff's complaint, the trial court concluded that the present action had not been brought within two years of the death of the plaintiff's decedent, ⁴ as required by General Statutes § 52–555,⁵ and that the accidental failure of suit statute, General Statutes § 52–592,⁶ did not operate to save the plaintiff's action. The plaintiff claims that the trial court improperly determined that § 52–592 did not save the action. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

The plaintiff's decedent received medical care and treatment from the defendants and, thereafter, died on August 15, 2007. Prior to August 15, 2009, the plaintiff obtained a ninety day extension of time to file suit pursuant to General Statutes § 52–190a (b), thereby extending the statute of limitations contained in § 52–555 until November 13, 2009. See footnote 4 of this opinion.

On November 9, 2009, the plaintiff sent a writ, summons and complaint to a marshal by overnight delivery and requested that the defendants be served in hand. The marshal attempted to serve the defendants on November 12, 2009, by leaving copies of the writ, summons and complaint in various professional or hospital offices. The marshal erroneously indicated on the return that each defendant was served “in hand” on that date. On April 29, 2011, the trial court dismissed the claims against the defendants for improper service.

In December, 2011, the plaintiff commenced the present action pursuant to § 52–592. The plaintiff filed the writ, summons and complaint on January 9, 2012. Thereafter, all of the defendants filed motions for summary judgment or, in the alternative, dismissal, on the basis of the two year statute of limitations contained in § 52–555. The trial court granted the defendants' motions and dismissed the action on the ground that, although the present action was commenced within one year of the dismissal of the first action, because the defendants were not properly served within the statute of limitations, the trial court was without jurisdiction to hear the case. ⁷ In doing so, the trial court determined that § 52–592 did not apply to save the plaintiff's action because the first action was not “commenced” for purposes of that statute. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the applicable standard of review. “The standard of review for a court's decision on a motion to dismiss [under Practice Book § 10–31(a)(1) ] is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... 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.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10–31(a)(1) may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, ‘[l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, ‘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.’ ... Filippi v. Sullivan, [273 Conn. 1, 8, 866 A.2d 599 (2005) ]; see also Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000), overruled in part by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003); see, e.g., Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., [239 Conn. 93, 99–100, 680 A.2d 1321 (1996) ] (deciding jurisdictional question on pleadings alone).

“In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; Practice Book § 10–31(a); other types of undisputed evidence; see, e.g., Kozlowski v. Commissioner of Transportation, [274 Conn. 497, 504 n. 7, 876 A.2d 1148 (2005) ] (photographs and deposition testimony); Ferreira v. Pringle, 255 Conn. 330, 336, 766 A.2d 400 (2001) (lease agreement); Shay v. Rossi, supra, 253 Conn. [at] 139 n. 7 (official records of department of children and families); and/or public records of which judicial notice may be taken; Cox v. Aiken, [278 Conn. 204, 217, 897 A.2d 71 (2006) ] (state employees' collective bargaining agreement); the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts ‘and need not conclusively presume the validity of the allegations of the complaint.’ Shay v. Rossi, supra [at], 140 . Rather, those allegations are ‘tempered by the light shed on them by the [supplementary undisputed facts].’ Id. [at], 141 ; see also Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits; see Practice Book § 10–31(b); or other evidence, the trial court may dismiss the action without further proceedings. See, e.g., Ferreira v. Pringle, supra [at], 344–45 ; Amore v. Frankel, 228 Conn. 358, 364, 367–69, 636 A.2d 786 (1994). If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations; Connecticut Hospital Assn. v. Pogue, 870 F.Supp. 444, 447 (D.Conn.1994); or only evidence that fails to call those allegations into question; Ostow & Jacobs, Inc. v. Morgan–Jones, Inc., 189 F.Supp. 697, 698 (S.D.N.Y.1960); the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. See id.

“Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts. Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004) (‘[w]hen issues of fact are necessary to the determination of a court's jurisdiction ... due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses' ...); Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003) (same). Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits. Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175 (‘[i]n some cases ... it is necessary to examine the facts of the case to determine whether it is within a general class that the court has power to hear’), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989). An evidentiary hearing is necessary because ‘a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.’ Coughlin v. Waterbury, 61 Conn.App. 310, 315, 763 A.2d 1058 (2001).” (Emphasis omitted; footnotes omitted.) Conboy v. State, 292 Conn. 642, 650–54, 974 A.2d 669 (2009).

On appeal, the plaintiff asserts that the trial court improperly determined that § 52–592 did not...