Opinion
No. CV05-4004483S
July 14, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Before the court is the defendants' motion to dismiss the plaintiff's petition for new trial on the grounds of improper venue.
FACTS
On March 23, 2006, the plaintiff, Michael Mackniak, as administrator of the estate of Joseph Steven Kostyu (decedent) filed a nine-count complaint against the defendants, Mathew Ostrum and Donald B. Whitebread Sons, Inc. in which the following facts are alleged.
On February 15, 1999, at approximately 5:05 a.m. the decedent was operating his automobile southbound, in the right travel lane, on Route 25, a three-lane, north-south highway, in the Town of Trumbull, Connecticut. A tractor truck owned by Donald B. Whitebread Sons, Inc., and driven by Ostrum, was traveling in the same direction directly behind the decedent. The truck collided with the decedent's vehicle causing it to spin across two lanes of traffic and off the road. The plaintiff alleges that the collision was caused by the defendants' carelessness and negligence and was the direct and proximate cause of the decedent's personal injuries and death.
According to the allegations, an earlier action was brought and filed in the judicial district of Fairfield County at Bridgeport, but the case was not tried on the merits because a judgment of nonsuit entered. In counts four, five and six, the plaintiff alleges that the present action is brought pursuant to General Statutes § 52-592, the accidental failure statute. Counts seven, eight and nine are brought pursuant to General Statutes § 52-270. The defendants move to dismiss counts seven, eight and nine of the plaintiff's complaint on the grounds of improper venue.
General Statutes § 52-592 states in relevant part: "(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
Sec. 52-270. Causes for which new trials may be granted.
(a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.
The defendant states in his memorandum of law that a "copy of the summons in the original action is attached hereto and marked as exhibit A." It is noted that the attached writ and complaint are copies of the writ of summons and complaint referring to the present action returnable to the judicial district of Waterbury with a return date of April 12, 2005.
DISCUSSION
"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." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "Venue is not a jurisdictional question but a procedural one . . . Statutory venue requirements simply [confer] a privilege not to be required to attend court at a particular location . . . Accordingly it may be waived by the parties, unlike subject matter jurisdiction, which cannot be conferred by consent." (Citations omitted; internal quotation marks omitted.) Savage v. Aronson, 214 Conn. 256, 263, 571 A.2d 696 (1990).
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The defendants move to dismiss counts seven, eight and nine of the plaintiff's complaint on the ground that the plaintiff is attempting to state a cause of action referred to as a petition for a new trial and that, because the original action was returnable to the Superior Court in the judicial district of Bridgeport where a judgment of nonsuit entered on December 16, 2002, the judicial district of Waterbury is the improper venue to return a petition for a new trial. The defendants argue that the only court that can act upon a petition for a new trial is the one in which the judgment was rendered. The plaintiff counters that a petition for a new trial is an equitable remedy and is statutorily controlled and that a petition is commenced as a separate civil action where the venue is controlled by statute. The plaintiff further argues that venue is proper where either the plaintiff or defendants reside and in the present case the plaintiff's residence makes the judicial district of Waterbury the proper venue.
"[A] petition for a new trial is not the equivalent of a motion for a new trial . . . A petition for a new trial, under General Statutes § 52-270, although ancillary to the original trial, is a new proceeding terminating in a judgment from which an appeal may be taken . . . A motion for a new trial, pursuant to Practice Book § 16-35, is made within the confines of the docketed matter." (Citations omitted.) In re James L., 55 Conn.App. 336, 350, n. 10, 738 A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618, 1999.
General Statutes § 52-270 provides that the court may, under certain circumstances, grant a new trial of any action that may come before it. The defendants are correct in their assertion that a petition for a new trial must always be addressed to the court in which the verdict or judgment that it seeks to set aside was rendered. Smith v. Hall, 71 Conn. 427, 42 A. 86 (1899), involved a request for a new trial based upon newly discovered evidence. The original action, brought in the Superior Court for Litchfield County resulted in a judgment that the plaintiff subsequently sought to enforce in the Superior Court in New Haven County. The defendant filed a cross complaint for a new trial in the subsequent action based upon newly discovered evidence. The court held that a petition or motion for a new trial must always be addressed to the court in which the verdict or judgment that it seeks to set aside was rendered. Noting that the clerk of the court in the county in which the proceedings took place kept a distinct set of records of all suits and proceedings brought and disposed of there, the court stated that "[t]he judgment against the defendant entered upon in the Superior Court for Litchfield County can only be set aside by proceedings before the same court in the same county, or on appeal from such proceedings." Id., 432. The court reasoned that "[h]ad the defendant brought a petition for a new trial before the Superior Court for Litchfield County, and then asked simply for a temporary injunction during its pendency, a different question as to the point of jurisdiction would have been presented. But, as the case stands, the Superior Court for New Haven County having no jurisdiction to grant a new trial; no cause being shown for the issue of an injunction, except to stay proceedings until a new trial could be obtained; and no application to the only court which could grant it having been made or being in contemplation, the motion to dismiss was properly sustained." Id., 433.
The defendants additionally cite Ellard v. Barrabee, 14 Conn.Sup. 102 (1946) for the proposition that a request for a new trial must be brought to the court that heard the original action. In Ellard v. Barrabee, the plaintiffs brought a petition for a new trial to the City Court of Hartford. On the defendant's motion, the case was transferred to the Court of Common Pleas, Hartford County. The plaintiffs' claim was based on a lack of notice and lack of opportunity to appear and defend. The Ellard v. Barrabee court, citing Smith v. Hall, supra, 71 Conn. 431, concluded that "[a] petition for a new trial must always be addressed to the court in which the judgment that it seeks to set aside was rendered." Id., 103.
Here, the original action was made returnable to and a judgment of nonsuit was rendered in the judicial district of Bridgeport. Consistent with our Supreme Court's holding in the cases cited above, the plaintiff's action brought pursuant to § 52-270 should have been made returnable to the judicial district of Bridgeport. The judicial district of Waterbury is the wrong venue. The motion to dismiss counts seven, eight and nine is granted.