Phillips v. Town of Hebron, 122220 CTCA, AC 42276

Docket Nº:AC 42276
Opinion Judge:ALVORD, J.
Attorney:Patricia A. Cofrancesco, for the appellant (plaintiff). Alexandria L. Voccio, for the appellees (defendants). Andrew A. Feinstein filed a brief for the Council of Parent Attorneys and Advocates, Inc., as amicus curiae.
Judge Panel:Alvord, Moll and Bishop, Js.
Case Date:December 22, 2020
Court:Appellate Court of Connecticut




No. AC 42276

Court of Appeals of Connecticut

December 22, 2020

Argued September 17, 2020

Procedural History

Action to recover damages for, inter alia, negligence per se, and for other relief, brought to the Superior Court in the judicial district of Tolland, where the court,

Farley, J., granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Appeal dismissed in part; affirmed.

Patricia A. Cofrancesco, for the appellant (plaintiff).

Alexandria L. Voccio, for the appellees (defendants).

Andrew A. Feinstein filed a brief for the Council of Parent Attorneys and Advocates, Inc., as amicus curiae.

Alvord, Moll and Bishop, Js.



The minor plaintiff, Alexander M. Phil-lips, [1] appeals from the trial court's decision granting the motion of the defendants, the town of Hebron (town), the Hebron Board of Education (board), and eight of the board's employees, 2 to dismiss counts one through twenty of the plaintiff's complaint for lack of subject matter jurisdiction on the basis of a failure to exhaust administrative remedies.3 We dismiss the appeal with respect to counts two through six, eight, ten, twelve through sixteen, eighteen, and twenty for lack of a final judgment.4 The judgment is affirmed in all other respects.

The following facts, as alleged in the plaintiff's operative complaint dated December 2, 2017, and procedural history are relevant to our review of this appeal. The plaintiff asserted the following allegations in paragraphs 1 through 16 of count one of his complaint. The seven year old plaintiff is a student at Gilead Hill Elementary School in Hebron (school). He has been diagnosed with Down syndrome and is without functional speech, and he has an individualized education program (IEP).5 On February 25, 2015, Ralph E. Phillips, the plaintiff's father, visited the school to observe the plaintiff in his therapy session and activities. During his visit to the plaintiff's kindergarten classroom, the plaintiff and his assigned paraprofessional went into the coatroom, where there was a desk and chair for the plaintiff.

The plaintiff's father met with Joshua T. Martin, the Director of Special Education, on or about March 2, 2015. The plaintiff's father asked Martin how much time the plaintiff spends in the coatroom each day. Martin responded that he could not imagine why the plaintiff would have to be in the coatroom unless there was discrete testing going on and that he would look into the matter.

On March 25, 2015, a Planning and Placement Team[6]meeting was held. The participants included the plaintiff's father, Sheryl Poulin, the plaintiff's classroom teacher, and Margaret Ellsworth, the plaintiff's special education teacher. During the meeting, Poulin stated that the plaintiff naps in the classroom in the afternoon, wakes up by 2 p.m., and will then use the computer. When the plaintiff's father asked Poulin where the plaintiff naps, Ellsworth responded that he naps in the coat-room. A daily communication sheet, used by the plaintiff's father and the school, indicated that the plaintiff slept an average of 2.5 hours per day during the kindergarten year.

Also during the March 25 meeting, the plaintiff's father asked how much time the plaintiff spends in the coatroom doing his classwork or projects, and Ellsworth responded that he spent an average of about forty minutes per day there. Ellsworth told the plaintiff's father that the plaintiff works in the coatroom because his projects require a lot of space, and there is not enough space in the classroom. She also stated that the plaintiff can be distracting to other children, and they can be distracting to him.

Prior to March 25, 2015, the plaintiff's father had not consented to or been notified of the plaintiff's desk and chair having been moved into the coatroom. The complaint alleged that ‘‘the practice of placing a child with a learning disability into a room away from nondisabled children is known as ‘warehousing,' [which] is done due to low expectations by teachers of the child's ability to learn.'' Although the plaintiff's operative IEP, dated April 2, 2014, indicated that the plaintiff ‘‘will spend 26.33 hours per week with children/students who do not have disabilities, '' the plaintiff was spending approximately nine hours per week with children/students who do not have disabilities.

In the March 30, 2015 daily communication sheet, the plaintiff's father read that ‘‘Mrs. Poulin and I rearranged some of the furniture and moved [the plaintiff's] workspace into the classroom.'' On April 30, 2015, the plaintiff's father received a report card from the school that was blank, except for information as to the plaintiff's name, the classroom teacher's name, and the number of days the plaintiff was tardy.

Exhibits submitted to the court by the plaintiff, together with his opposition to the defendants' motion to dismiss counts one through twenty of his complaint, disclose the following additional facts concerning relevant administrative proceedings that preceded this action.[7] The plaintiff's counsel submitted to the state Department of Education, Bureau of Special Education (department) a Special Education Complaint Form (state complaint) and a Request for Impartial Special Education Hearing (request for due process hearing), both dated July 27, 2015. The plaintiff's counsel attached a complaint, which included the allegations described previously in this opinion and other allegations regarding the implementation of a feeding program for the plaintiff. The state complaint and the request for due process hearing did not identify any specific remedies sought. By way of amendment dated September 16, 2015, the plaintiff sought the following remedies: (1) a written explanation concerning the placement of the plaintiff in the coatroom; (2) the replacement of the feeding specialist; (3) unrestricted access to visit the school without advance notice; and (4) modifications to the plaintiff's IEP. By way of an e-mail dated September 24, 2015, the plaintiff's counsel communicated a request to amend the complaint to seek monetary damages. The plaintiff's state complaint was put in abeyance to allow the due process hearing to proceed, in accordance with applicable regulations.

By motion and accompanying memorandum of law dated October 6, 2015, the board sought dismissal of the request for a due process hearing ‘‘to the extent that such request seeks remedies not available under the [Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2012)] or accompanying state statutes and/or regulations.'' Specifically, the board sought dismissal of any request (1) for money damages, (2) for a written explanation of why the plaintiff's educational program was moved into the coatroom, and (3) that the board provide the plaintiff's father with unrestricted access to visit the school without advance notice. The motion did not seek the dismissal of the remaining remedies sought by the plaintiff, including the requested modifications to the plaintiff's IEP. In its accompanying memorandum of law, the board acknowledged that the plaintiff ‘‘has alleged that the board provided this young student with special education services in a more restrictive educational setting for part of the school day, instead of wholly within the regular education classroom. This claim is expressly based upon the provisions of the IDEA.''

After the board filed its motion to dismiss, the plaintiff's father withdrew the request for a due process hearing. He requested that the department proceed with an investigation of the state complaint. The department completed its investigation and issued a report of its findings of fact and conclusions on March 14, 2016. The department concluded that ‘‘the district's use of the alcove space, its failure to communicate the use of this space to the parent and the miscalculation of the time the student spent with nondisabled peers did not result in a denial of a [free appropriate public education (FAPE)] to the student . . . .'' In its final paragraph, the report stated that the parties may ‘‘request a due process hearingon these same issues through this office if a party disagrees with the conclusions reached in this investigation and meet the applicable statute of limitations.'' Following the issuance of the department's report, there was no further request made for a due process hearing. The plaintiff did file a complaint with the Commission on Human Rights and Opportunities (CHRO), which provided a release of jurisdiction on or about June 24, 2016.

The plaintiff commenced this action in September, 2016. On October 17, 2016, the defendants removed this case to the United States District Court for the District of Connecticut. On August 29, 2017, the District Court remanded the case back to the Superior Court after concluding that the complaint did not raise a substantial question of federal law.8


We deviate from our discussion of the facts and procedural history to address an issue of subject matter jurisdiction. On September 8, 2020, this court issued an order to the parties to be prepared to address at oral argument whether this appeal should be dismissed with respect to the town, Martin, and Barbara H. Wilson, for lack of a final judgment.

‘‘The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § [61-1]. . . . The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court...

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