Opinion
No. CVH-6685
February 14, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS
I STATEMENT OF THE CASE
This is an action in damages brought pursuant to Connecticut General Statutes § 52-593, after a prior action against James Reiner terminated on or about May 19, 2000.
The defendant, hereinafter ("Mayflower"), moves to dismiss the action because the court lacks subject matter jurisdiction as this action is barred by the statute of limitations.
In the prior action, Leonard Udolf et al. v. James M. Reiner, Superior Court, judicial district of Hartford/New Britain, Housing Session, Docket No. CVH 5422, the same plaintiffs commenced an action for unpaid rent against James M. Reiner d/b/a Mayflower Laundry, hereinafter ("Reiner"). The complaint was served on December 7, 1995. On or about March 18, 1997, Reiner moved to strike the complaint on the basis that a necessary party, Mayflower, had not been named as a defendant. On or about April 11, 1997, the plaintiffs objected to the motion to strike on the grounds that Reiner signed the lease in his individual capacity and Mayflower was not a necessary party. The motion to strike was not granted, and the case proceeded to trial. On May 19, 2000, Judge Lois Tanzer entered judgment for Reiner.
On May 17, 2001, the plaintiffs served the instant complaint in Leonard Udolf et al. v. Mayflower Laundry Drycleanng Co., Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 6685. The motion to dismiss and memorandum of law in support were filed on August 29, 2001. On October 5, 2001, the plaintiff filed an objection to motion to dismiss. On October 10, 2001, the case was marked off by agreement of the parties. On October 21, 2006, the defendant reclaimed the motion to dismiss. The matter was heard on February 7, 2007.
II DISCUSSION A Motion to Dismiss
"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. Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006): see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. Each element of jurisdiction is dependent upon both law and fact. Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person. Facts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court are essential to jurisdiction over the subject-matter of the suit. Facts showing that a particular judgment is rendered in compliance with all existing mandatory law in that regard are essential to jurisdiction to render a particular judgment. All such facts are known as jurisdictional facts. (Citations omitted; internal quotation marks omitted.)" Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988).
"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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211; Filippi v. Sullivan, supra, 273 Conn. 8; Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits . . . If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken . . ." (Citations omitted.). Herzog Foundation, Inc. v. Uni. of Bridgeport, 41 Conn.App. 790, 793, 677 A.2d 1378 (1996).
B Motion to Dismiss versus Motion for Summary Judgment
Generally, a challenge based on the statute of limitations is raised by special defense and determined by motion for summary judgment. See Warren v. Silent Stalker, Inc., Superior Court, judicial district of Milford, Docket No. CV 940048866S (July 15, 1996, Ripley, J.) [ 17 Conn. L. Rptr. 356]. Practice Book § 10-50 provides in relevant part: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, . . . the statute of limitations . . . must be specially pleaded, . . ." "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
However, an exception exists for cases involving specific limitations contained in statutes. "Where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone. [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised at anytime, even by the court sua sponte, and may not be waived." (Citations omitted.) Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). A motion to dismiss may be granted in such cases. See Warren v. Silent Stalker Inc., supra.
In this case, the plaintiff has filed this action pursuant to Connecticut General Statutes § 52-593. This statute creates a right of action that does not exist at common law, and the remedy exists only within a specific time limitation. This time limitation is not treated as an ordinary statute of limitations, but rather a limitation on liability. "Facts showing that a particular judgment is rendered in compliance with all existing mandatory law in that regard are essential to jurisdiction to render a particular judgment." Castro, supra, 207 Conn. 433-34. Under such circumstances, a motion to dismiss may be granted in an action brought pursuant to § 52-593.
C Statute of Limitations
The defendant argues that the right of action for the cause in the complaint did not accrue within six years next before the commencement of this action, and, therefore, is barred by § 52-576.
"[General Statutes § ]52-576(a) provides in relevant part that, `[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . .' Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand . . . D'Occhio v. Real Estate Commission, 189 Conn. 162, 182, 455 A.2d 833 (1983). While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action . . . Engelman v. Connecticut General Life Ins. Co., 240 Conn. 287, 294 n. 7, 690 A.2d 882 (1997)." (Internal quotation marks omitted.) Coelho v. ITT Hartford, 251 Conn. 106, 111, 752 A.2d 1063 (1999).
In this case, the complaint alleges that Mayflower leased space from the plaintiffs for an initial term of five years, commencing October 1, 1990, and ending September 30, 1995. The defendant allegedly vacated the premises in September 1993, and stopped paying rent and other charges due under the lease agreement. Applying the statute of limitations test, the plaintiffs first could have successfully maintained an action after the alleged breach in September 1993. However, the instant action was not served until May 17, 2001, more than six years after alleged the breach of the lease.
D Accidental Failure of Suit Statute CT Page 2983
The defendant argues that the plaintiffs should not be allowed to avail themselves of the accidental failure of suit statute because they intentionally did not name Mayflower in the prior action.The plaintiffs counter that § 52-593 specifically authorizes the plaintiffs' to bring this action, since a prior action failed as a result of the plaintiffs' naming of the "wrong" defendant.
"When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action." General Statutes § 52-593.
Under § 52-593, a plaintiff may file a new action beyond the applicable statute of limitations period when the plaintiff has failed to obtain judgment in the original action for failure to name the "right person" as defendant. See Cogan v. Manhattan Auto Financial, 276 Conn. 1, 882 A.2d 597 (2005); Isidro v. State, 62 Conn.App. 545, 771 A.2d 257 (2001). "The accidental failure of suit statute, general statutes section 52-593, . . . applies to save a claim where the plaintiff fails to name the correct defendant in the original action if a second action is brought within a year after the original suit terminated. Although this statute is remedial and should be liberally construed, the statute applies only in cases where the original case ends because of the failure to name the right defendant." Stephenson's Connecticut Civil Procedure, 2003 Supplement (3rd Ed., 1997), p. S-102). "Under Connecticut law, a `right person,' as that term is used in § 52-593, is one who, as a matter of fact, is a `proper defendant for the legal theory alleged.'" (Citations omitted). Cogan v. Manhattan Auto Financial, supra, 276 Conn. 8.
In Isidro, the Appellate Court rejected the plaintiff's contention that § 52-593 should be interpreted broadly to apply to cases where the plaintiff in the prior action names the wrong defendant by virtue of a legal mistake, rather than just by a factual mistake as to the actual identity of the defendant. Isidro v. State, supra, 62 Conn.App. 549. The Appellate Court held that: "Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual . . .
"Similarly, here, the plaintiff's original action was not dismissed because she failed to name the proper defendant as a matter of fact. Instead, the plaintiff's original action was dismissed because . . . the defendant was immune from liability. We note that the plaintiff did not make a mistake as to the identity of the owner of the vehicle at the time of the original action. To the contrary, she stipulated that the state owned the vehicle. The plaintiff was, therefore, free to pursue the state in the original action but did not to do so for some reason, whether a tactical choice or technical deficiency . . .
"Moreover, following the plaintiff's logic would undermine the statute of limitations because a plaintiff could unilaterally extend the limitation period simply by filing an action against a defendant who could not be liable based on a legal theory. To allow [such an] action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process . . . In the course of interpreting a similar statute that provides refuge from the statute of limitations, we noted that [a]lthough [General Statutes] § 52-592 is a remedial statute and must be construed liberally . . . it should not be construed so liberally as to render statutes of limitation virtually meaningless . . . We conclude that the same logic applies to § 52-593 and, accordingly, reject the plaintiff's interpretation of the statute. Under these circumstances, allowing the plaintiff to gain refuge under § 52-593 would undermine the purpose of the statute of limitations. We conclude, therefore, that the court properly determined that § 52-593 did not apply to the plaintiff's case." (Citations omitted; internal quotation marks omitted.) Isidro v. State, supra, 62 Conn.App. 549-51.
In the original action, the plaintiffs alleged that Reiner d/b/a Mayflower Laundry leased commercial space in a building owned by them. The initial term of the lease was five years, commencing October 1, 1990, and ending September 30, 1995. In September 2003, Reiner vacated the premises and ceased paying rent and other charges under the lease. The plaintiffs' legal theory was that Reiner signed the lease and was individually liable. Reiner met the essential prerequisites for a properly named defendant under the plaintiffs' legal theory as alleged in the original action. See Cogan v. Manhattan Auto Financial, supra, 276 Conn. 10.
The plaintiffs' failure to name Mayflower in the original action was not the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual. The plaintiffs had proceeded in the prior action against Reiner based on the legal theory that he was individually liable. The plaintiffs were free to pursue Mayflower in the original action but instead made a tactical choice or technical deficiency not to do so for some reason. They also objected to having Mayflower added as a defendant. The plaintiffs' failure to name in the original action all of the defendants from whom they could have recovered does not constitute a "failure to name the right person as defendant" within the meaning of § 52-593. The instant action is time barred under § 52-576 and cannot be saved under § 52-593.
III CONCLUSION AND ORDER
For the above-stated reasons, the motion to dismiss is granted.