Opinion
No. CV 99 0427298 S
December 24, 2008
MEMORANDUM OF DECISION
On August 7, 2008, this court issued a decision on a motion to dismiss filed by one of the defendants, Fidelity and Deposit Company of Maryland (Fidelity). Therein, Fidelity argued, inter alia, that the court lacked subject matter jurisdiction over the plaintiff's claims against it because the plaintiff, North Haven Construction Co., Inc. (North Haven), did not commence the action within the time provided for by the applicable statute of limitations. North Haven Construction Co. v. Banton Construction Co., Superior Court, judicial district of New Haven, Docket No. CV 990427298 (August 7, 2008, Bellis, J.) (46 Conn. L. Rptr. 221, 223). The court determined that the limitations period began to run on the date that a particular payment was made and that a disputed issue of fact existed as to when that occurred. Id., 225. Accordingly, the court concluded that "as the motion to dismiss raises issues of fact that pertain to the subject matter jurisdiction of the court, an evidentiary hearing is required. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 55, 459 A.2d 503 (1983) . . ." Id., 228. The hearing was subsequently scheduled for October 9, 2008.
On August 25, 2008, Fidelity filed a timely motion to reargue and/or for reconsideration of the court's decision. North Haven filed a timely objection to Fidelity's motion and oral argument was heard on October 9, 2008.
DISCUSSION
Fidelity contends that the court erred in its August 7, 2008 decision which required an evidentiary hearing to resolve the issues of fact that pertain to the subject matter jurisdiction of the court. Fidelity argues that the court should not hold an evidentiary hearing and should enter an order dismissing the complaint against it for the following reasons: there is no disputed issue of material fact; the court overlooked controlling law regarding the standards and burden of proof that apply to motions to dismiss; and an evidentiary hearing is inappropriate when a motion to dismiss raises the issue of subject matter jurisdiction. For the reasons set forth below, Fidelity's request is denied, and an evidentiary hearing on the factual issue is ordered.
Disputed Issue of Material Fact
Fidelity first asserts that there is no disputed issue of material fact with regard to the date the relevant payment was made for purposes of determining when the statute of limitations began to run.
First, Fidelity points out that pages 3-4 of the decision; see North Haven Construction Co. v. Banton Construction Co., supra, 46 Conn. L. Rptr. 222; contain the following sentences, the third of which it characterizes as a finding of fact: "In count three, North Haven adds allegations that in September, 1995, Banton submitted a claim to the housing authority . . . The claim included $737,000 for North Haven's idle equipment. In October or November 1995, the housing authority paid Banton $300,000 on this claim . . ."1 Fidelity then observes that on pages 16 and 21; see id., 226; the court concludes that this payment date "is a disputed issue of fact." As a matter of clarification, the court notes that although the sentences found on pages 2-3 were in the section of the decision entitled "Facts," these sentences were not intended as statements of the court's findings of fact. Instead, they were intended to convey some of the specific allegations that North Haven included in count three of the complaint.
Fidelity further contends that the court erred in concluding that a disputed issue of fact existed as to the payment date in that, in the complaint, North Haven alleged that the payment occurred in 1995, Fidelity stipulated that all of the allegations in the complaint should be taken as true, and North Haven did not argue that the payment date was in dispute. Fidelity argues that North Haven's allegation that payment was made in 1995 is a judicial admission that is binding on the plaintiff and that the court, when considering a motion to dismiss, must take the facts alleged in the complaint as true.
Fidelity, however, oversimplifies the nature of North Haven's allegations and arguments as well as the nature of its own arguments. The court rejects Fidelity's argument that the court should have only considered the allegations of the complaint and taken them as true. Although in many cases the court need only look to the allegations in the complaint, and a construction of them that is favorable to the pleader will require the court to take them as true, the law is clear that the court must consider the entire record when evaluating a motion to dismiss. As the court noted its decision, "[a] motion to dismiss tests, CT Page 20490 inter alia, whether, on the face of the record, the court is without jurisdiction." (Emphasis added; internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "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." (Emphasis added; internal quotation marks omitted.) Id., 211. "The motion to dismiss invokes the existing record and must be decided on 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." (Emphasis added; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
In the present case, as Fidelity notes, the court's conclusion that a dispute existed as to the payment date was based, inter alia, on the fact that, in its answer, Fidelity specifically denied the paragraph of the complaint in which North Haven alleges when the payment was made. North Haven Construction Co. v. Banton Construction Co., supra, 46 Conn. L. Rptr. 226. Indeed, in its memorandum in support of its motion to dismiss, Fidelity included a footnote in which it called attention to this portion of the record. When the court considers a motion to dismiss, it considers not only the allegations of the complaint, but also the existing record. Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). The court is not required to overlook the fact that Fidelity has specifically denied that the payment occurred on the date that North Haven alleged that it did in its complaint.
Likewise, the court rejects Fidelity's contention that the plaintiff's allegations regarding the payment date are judicial admissions and must be taken as true. As Fidelity correctly notes, generally, "[f]actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case." (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 345. "A party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified." Hirsch v. Thrall, 148 Conn. 202, 206-07, 169 A.2d 271 (1961). The court may, however, exercise its discretion to allow an admission to be explained or modified when, for example, there is evidence in the record that is contrary to the judicial admission. See Pedersen v. Vahidy, 209 Conn. 510, 520, 552 A.2d 419 (1989). Additionally, because "[a] judicial admission . . . is conclusive upon the party making it . . . [t]he statement relied on as a binding admission must be clear, deliberate and unequivocal." (Citation omitted; internal quotation marks omitted.) Birchard v. New Britain, 103 Conn.App. 79, 85, 927 A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 721 (2007). Accordingly, "[for a factual allegation to be held to be a judicial admission, the fact admitted should be one within the speaker's particular knowledge and one about which the speaker is not likely to be mistaken." Mamudovski v. BIC Corp., 78 Conn.App. 715, 728, 829 A.2d 47 (2003), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004).
In this case, the additional allegations in North Haven's complaint indicate that it could have been mistaken in alleging that the payment to Banton occurred in October or November 1995. Specifically, North Haven alleges that Banton did not inform it of the payment, and instead . . . converted the money to its own use. When, as here, the allegation at issue "relates, not to a fact peculiarly within [the party's] own knowledge and as to which he could not be mistaken, but is in the nature of an estimate or opinion as to which he may honestly be mistaken, [the party] does not unequivocally concede that the fact is in accord with the opinion expressed, and there is no injustice in permitting the court to consider the other evidence in the case, and determine from all the evidence what the actual facts are." (Internal quotation marks omitted.) Pedersen v. Vahidy, supra, 209 Conn. 520. Consequently, the allegations in the complaint should not be considered conclusive judicial admissions and the court looks first to the record, and if necessary, to other evidence to determine the pertinent facts.
In addition, I pointed out in my decision, both parties submitted several documents and deposition excerpts that indicated that the date that the payment was made is unconfirmed. See North Haven Construction Co. v. Banton Construction Co., supra, 46 Conn. L. Rptr. 226. Practice Book § 10-31 expressly permits the submission of affidavits in support of and in opposition to a motion to dismiss.2 It does not appear that Connecticut's appellate courts have specifically addressed whether evidence other than affidavits, particularly unauthenticated documents, may be considered when ruling on a motion to dismiss, and the question remains as to whether Practice Book § 10-31 permits the parties to submit documents. As the Connecticut Supreme Court has stated in discussing the related question of whether a court can review unauthenticated documents in deciding a motion for summary judgment,3 "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). Nevertheless, as the Appellate Court has pointed out in discussing whether a trial court abused its discretion when it refused to consider uncertified deposition transcripts in deciding a motion for summary judgment, "in interpreting the rules [of practice] liberally, the [unauthenticated] deposition testimony could have been admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists, particularly where, as here, both parties submitted uncertified deposition transcripts. Therefore, a court properly could consider such a submission without objection." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
Here, it is important to note that although Fidelity now objects to the court's consideration of several documents on the ground that they were not properly authenticated, it did not raise this objection until after the court issued its decision. Moreover, it did not properly authenticate the documents it submitted itself. Thus, Fidelity waived any right to object to the court's consideration of the documents submitted by the parties.
In contrast, at least one trial court has concluded that a court may not consider uncertified documents and rely on them as a basis for finding that there is an issue of fact. In Baer v. New England Home Delivery Services, LLC, Superior Court, judicial district of New Haven, Docket No. CV 06 4021976 (June 6, 2007, Cosgrove, J.), the defendant argued that the plaintiff did not have standing to assert its claim and submitted an uncertified copy of a contract between the defendant and another entity in support of this argument. The plaintiff did not submit any unauthenticated documentation and argued that it was improper for the defendant to rely on documentation outside of the record. Id. The court explained that "[w]hile Practice Book § 10-31(a) allows the defendant to submit affidavits to support facts not apparent on the record, the provision does not include an allowance for other documents in the form submitted by the defendant." Id. As a result, the court concluded that this evidence was insufficient to establish a factual basis for the defendant's argument and limited its evaluation of standing to the record. Id.
Regardless of whether this court properly considered the unauthenticated documents submitted by both parties in support of their respective positions, the allegations in the complaint regarding the payment date and Fidelity's denial of said allegations in its answer sufficiently created an issue of fact necessary to the determination of jurisdiction, as noted in my decision. North Haven Construction Co. v. Banton Construction Co., supra, 46 Conn. L. Rptr. 226.
Finally, Fidelity argues that because North Haven failed to set forth allegations sufficient to establish that the court has subject matter jurisdiction, it did not meet its burden and the motion to dismiss should be granted. While Fidelity is correct that North Haven bears the burden of establishing jurisdiction; see Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996); this point is not inconsistent with my decision to order an evidentiary hearing. As discussed above and in my prior memorandum of decision, there is a disputed issue of fact apparent from the record that must be resolved in order for the court to rule on Fidelity's motion.
This approach is consistent with the following principles. "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.) Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). Furthermore, "[t]here is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action . . . As the [trial] court correctly stated in its memorandum of decision, the defendant's motion to dismiss argued that the plaintiff had not stated a cause of action . . . Such is not the function of the motion to dismiss." (Emphasis in original.) Egri v. Foisie, 83 Conn.App. 243, 247-48, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). Here, in the absence of evidence from which the payment date can be established, I am unable to conclude that North Haven cannot state a cause of action against Fidelity that the court would have jurisdiction over.
"A motion to strike . . . rather than a motion to dismiss, is the proper vehicle to attack the legal sufficiency of a complaint." Caruso v. Bridgeport, 285 Conn. 618, 941 A.2d 266 (2008).
Evidentiary Hearing
Fidelity argues that it was improper to order an evidentiary hearing because such hearings are inappropriate to determine an issue of fact relevant to subject matter jurisdiction, rather than personal jurisdiction. Contrary to Fidelity's contention, our Supreme and Appellate Courts have expressly endorsed the use of such hearings to resolve factual issues pertaining to subject matter jurisdiction.
In Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 48, the Supreme Court explained the relevant principles. "A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists . . . In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses . . . When 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." Id., 56. The availability of such hearings where subject matter jurisdiction is at issue has been repeatedly authorized. For example, in Coughlin v. Waterbury, 61 Conn.App. 310, 763 A.2d 1058 (2001), the court overturned the trial court's granting of a motion to dismiss for lack of subject matter jurisdiction based on the pleadings and supporting affidavits. Id., 315-16. In Coughlin, the court stated: "Because the issue of maintenance remains in dispute and the resolution of the issue is determinative of the court's subject matter jurisdiction, the court was precluded from granting the motion to dismiss on the ground that it lacked jurisdiction . . . Here, the court resolved a critical fact on the basis of the complaint and the affidavits, both of which contained controverted facts. We conclude, therefore, that the court improperly decided the motion without holding an evidentiary hearing." Id.
Fidelity cites to Lemoine v. McCann, 40 Conn.App. 460, 673 A.2d 115, cert. denied, 237 Conn. 904, 674 A.2d 1330 (1996), in support of its argument that where subject matter jurisdiction is in issue, as in the present case, a Standard Tallow hearing is inappropriate. Lemoine, however, does not stand for such a broad proposition. In Lemoine, the dispositive issue before the trial court was whether the plaintiff had alleged "wanton, reckless or malicious conduct," rather than mere negligence, as this determination would affect whether the court had subject matter jurisdiction. Id., 464-65. The court affirmed the trial court's denial of the plaintiff's request for a "trial-like hearing" because "no trial-like hearing was required to enable the court to review those pleadings to determine what cause of action or causes of action they set out." Id., 466.
For the foregoing reasons, an evidentiary hearing is in order.
CONCLUSION
For the reasons discussed above, there is a disputed issue of fact and, an evidentiary hearing is ordered to take place on Tuesday, January 13, 2009 at 10:00 a.m.
1 It is important to note that the third sentence included additional language that Fidelity did not include in its motion, and actually stated, "[i]n October or November 1995, the housing authority paid Banton $300,000 on this claim, but Banton did not inform North Haven of the payment and converted the money for its own use." (Emphasis added.) North Haven Construction Co. v. Banton Construction Co., Superior Court, judicial district of New Haven, Docket No. CV 99 0427298 (August 7, 2008, Bellis, J.) (46 Conn. L. Rptr. 221, 222).
2 Practice Book § 10-31 provides in relevant part: "(a) . . . 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. (b) Any adverse party who objects to this motion shall . . . file and serve . . . a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record."
Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ."