Worth v. Com.m'r of Transp.

• Decision Date: 15 May 2012
• Docket Number: No. 32261.,32261.
• Citation: 43 A.3d 199,135 Conn.App. 506
• Court: Connecticut Court of Appeals
• Parties: Keyin T. WORTH et al. v. COMMISSIONER OF TRANSPORTATION et al.

135 Conn.App. 506

43 A.3d 199

Keyin T. WORTH et al.

v.COMMISSIONER OF TRANSPORTATION et al.

No. 32261.

Appellate Court of Connecticut.

Argued March 17, 2011.

Decided May 15, 2012.

Keyin T. Worth, pro se, the appellant (named plaintiff).

Charles H. Walsh, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellee (defendants).

LAVINE, ALVORD and McDONALD, Js.

LAVINE, J.

The self-represented plaintiff, Keyin T. Worth, appeals from the judgment of the trial court, Hon. Richard M. Rittenband, judge trial referee, granting the motion to dismiss filed by the defendants, the department of transportation (department) and Joseph F. Marie, former commissioner of transportation.¹ On appeal, the plaintiff claims that the court erred in concluding that she may not take advantage of the accidental failure of suit statute, General Statutes § 52–592(a).² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff is the owner of real property located at 315 New Hartford Road in Barkhamsted (property) where she operates a retail business. In August, 2003, the department repaved a portion of Route 44 that abuts the property. When the repaving project was completed, the plaintiff noticed that storm water emanating from the highway was flooding her driveway. The plaintiff notified the department of the flooding, and the department attempted to fix the problem with little success. The plaintiff sought permission from the claims commissioner, pursuant to General Statutes § 4–160, to bring an action against the defendants. On September 5, 2007, the claims commissioner again granted the plaintiff permission to initiate an action against the defendants, finding that the department had not undertaken meaningful efforts to ameliorate the flooding until January, 2006.

IFIRST ACTION ³

In March, 2006, after receiving permission from the claims commissioner, the plaintiff commenced an action (first action), with the aid of counsel, against Steven E. Korta, who was at that time the commissioner of transportation, the state of Connecticut, the department and her neighbors ⁴ to recover damages caused by the flooding on her property and to enjoin further damage to the property. See Worth v. Korta, 132 Conn.App. 154, 31 A.3d 804 (2011), cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012). The file reveals that the first action was subject to a scheduling order. The defendants sought discovery from the plaintiff by way of interrogatories and requests for production (written discovery) on May 9, 2008. The plaintiff repeatedly sought an extension of time in which to comply with the defendants' written discovery. On October 16, 2008, the defendants filed a motion for order of compliance due to the plaintiff's failure to comply with their written discovery. On November 3, 2008, the court, Prescott, J., ordered the plaintiff, who was then representing herself, to comply with the written discovery by December 15, 2008.

The plaintiff failed to comply with Judge Prescott's order. On January 6, 2009, the defendants filed a motion for a judgment of dismissal in which they represented that the plaintiff had failed to comply with Judge Prescott's November 3, 2008 discoveryorder and also that “the plaintiff ... failed to appear for a December 29, 2008 ⁵ deposition in response to a subpoena duly served on December 13, 2008.” ⁶ The defendants argued that the plaintiff has “frustrated the ends of justice by failing to provide meaningful discovery to the state and thwarting the state's ability to defend itself against the claims in the” operative complaint. With their motion to dismiss, the defendants submitted a copy of the scheduling order indicating that written discovery was to be completed by September 30, 2008, and that the depositions of fact witnesses were to be taken by December 30, 2008. On January 21, 2009, the court, Elgo, J., ordered that a “nonsuit shall enter against the plaintiff.” ⁷

On May 6, 2009, the plaintiff filed a motion to open the judgment of nonsuit. On the standard judicial form entitled motion to open judgment, the plaintiff stated that the judgment should be opened for the following reasons: “1. mistakes, accident, and other causes existed at the time of the judgment. 2. Good cause and timeliness existed at the time of the judgment.” The plaintiff attached a twelve page memorandum of law, affidavit and numerous exhibits to her motion to open. In her memorandum, the plaintiff represented that she had a good cause of action and was prevented by mistake and reasonable cause due to (1) her counsel's sudden withdrawal without reason,⁸ (2) her never having received the modified scheduling order, (3) the misleading implications of settlement negotiations ⁹ and (4) the defendants' counsel being permitted to attend her deposition that was noticed by counsel for the defendant neighbors.¹⁰

The defendants objected to the motion to open and set aside the judgment of nonsuit. The defendants asserted “that good cause does not exist for reopening the judgment because the plaintiffs still have not complied with the court's November 3, 2008 discovery order, because the plaintiffs filed the motion four weeks prior to trial and because the reasons set forth in the motion are not supported by the facts of the case.” The defendants set forth their version of the procedural history in a twenty-seven point list. The court, Domnarski, J., denied the motion to open the judgment of nonsuit and sustained the defendants' objection thereto on May 26, 2009. The plaintiff did not appeal from Judge Domnarski's ruling.

IIPRESENT ACTION

On January 19, 2010, the plaintiff commenced the present action against the defendants pursuant to the accidental failure of suit statute, § 52–592. The plaintiff sought an injunction and damages resulting from the 2003 repaving by the department, which allegedly caused flooding on her property. On April 5, 2010, the defendants filed a motion to dismiss the present action arguing, inter alia, that the plaintiff could not rely on the accidental failure of suit statute.¹¹ The defendants attached documents to their motion to dismiss to establish that the judgment of nonsuit that entered in the first action was not the result of inadvertence, mistake or excusable neglect. On April 26, 2010, the same day that the motion to dismiss was to be heard at short calendar, the plaintiff appeared in court with an objection to the motion to dismiss.¹²

On April 27, 2010, Judge Rittenband granted the defendants' motion to dismiss on two grounds. The court first noted that Practice Book § 10–31¹³ provides that the party opposing a motion to dismiss must file its objection within five days of the date that the motion to dismiss appears on the short calendar.¹⁴ The court found that the plaintiff had failed to comply with § 10–31 and that the defendants would not waive their objection to the untimely presentation of an objection. As to the merits of the motion to dismiss, the court concluded that the plaintiff was attempting to “resurrect” her first action by suing Marie, who was then commissioner of transportation. The court found that the plaintiff did not plead any facts supporting claims of inadvertence, mistake or excusable neglect to support the application of the accidental failure of suit statute. The plaintiff appealed from the judgment of dismissal. Subsequently, she filed a motion to open the judgment and a motion to reconsider. The court denied both motions. Additional facts will be set forth as necessary.

IIIAPPEAL

The plaintiff claims that the court improperly concluded that she may not avail herself of the accidental failure of suit statute because she failed to plead facts to establish that the first action was not tried on its merits due to a mistake, inadvertence or excusable neglect. We conclude that that the court properly dismissed the action on the basis of the facts presented by the defendants.¹⁵

“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 [is] de novo.” (Internal quotation marks omitted.) Waterbury Twin, LLC v. Renal Treatment Centers–Northeast, Inc., 292 Conn. 459, 466–67, 974 A.2d 626 (2009). “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.” (Internal quotation marks omitted.) Merrill v. NRT New England, Inc., 126 Conn.App. 314, 318, 12 A.3d 575, cert. granted on other grounds, 300 Conn. 925, 15 A.3d 629 (2011).¹⁶ “In ruling upon whether a complaint survives a motion to dismiss, 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.) Mulcahy v. Mossa, 89 Conn.App. 115, 120, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005).

“[If] the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... and/or public records of which judicial notice may be taken ... 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.... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].... 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 ... or...