710 Long Ridge Operating Co. II, LLC v. Stebbins

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710 LONG RIDGE OPERATING COMPANY II, LLC v.
RANDOLPH STEBBINS
(AC 35937)
Bear, Sheldon and Lavery, Js.*
Argued April 23—officially released October 7, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Kevin Tierney, judge trial
referee.)
Anne Jasorkowski, with whom, on the brief, was
Angelo Maragos, for the appellant (plaintiff).
Edward Kanowitz, for the appellee (defendant).
Opinion
LAVERY, J. The plaintiff, 710 Long Ridge Operating
Company II, LLC, appeals from the judgment of the
trial court dismissing its action against the defendant,
Randolph Stebbins. On appeal, the plaintiff claims that
the court did not have authority to dismiss the action
after judgment had been rendered in the action. We
reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. Because in this appeal we review
the trial court’s ruling on a motion to dismiss, we take
the facts to be those alleged in the complaint, construing
them in a manner most favorable to the plaintiff. See
Beecher v. Mohegan Tribe of Indians of Connecticut,
282 Conn. 130, 132, 918 A.2d 880 (2007); see also Sullins
v. Rodriguez, 281 Conn. 128, 131–32, 913 A.2d 415
(2007). On December 26, 2012, the plaintiff filed an
amended complaint against the defendant, docket num-
ber FST-CV12-6016072-S, alleging breach of contract
(first action). In its complaint, the plaintiff, a licensed
operator of a chronic care and convalescent facility,
alleged that the defendant failed to satisfy the terms of
an admissions agreement pertaining to his stepfather,
Robert Scanlon. The plaintiff served the defendant with
the summons and complaint; however, the plaintiff was
late in returning service to the court, exceeding the two
month time limit imposed by General Statutes § 52-48
(b). The defendant’s counsel ‘‘declined to reply to [the
plaintiff’s counsel] after numerous weeks,’’ and, accord-
ingly, the plaintiff was unable to obtain the defendant’s
waiver of the defective service and to proceed with the
first action.
Accordingly, on February 20, 2013, the plaintiff com-
menced the present second action against the defen-
dant, docket number FST-CV13-6017386-S, by serving
him with a new summons and complaint (second
action). It is undisputed that the first action and the
second action contained identical allegations. On March
19, 2013, the plaintiff filed, in the second action, a
motion for default for failure to appear in accordance
with Practice Book § 17-25.1 On March 26, 2013, the
court, Mintz, J., rendered judgment against the defen-
dant. The court ordered the defendant to pay damages,
interest, attorney’s fees, costs, and postjudgment inter-
est to the plaintiff.
On May 20, 2013, the defendant filed ‘‘a motion to
dismiss the plaintiff’s judgment’’ pursuant to Practice
Book (2013) § 10-30.2 The defendant did not file a
motion to open or set aside the judgment, as provided
for by our rules of practice.3 On May 23, 2013, after
receipt of the defendant’s motion to dismiss and before
any hearing or ruling by the court on that motion, the
plaintiff withdrew the first action.4
On July 22, 2013, a hearing was held on the motion
to dismiss. On that date, neither the first nor the second
action was ‘‘pending.’’ See footnote 7 of this opinion.
The court compared the pleadings of the first action
with those of the second action. The court took judicial
notice of the contents of the prior pending file.5 The
court noted that ‘‘as of May 17, 2012 and May 20, 2013
. . . the two actions were pending at the same time.’’
The court then determined that the allegations in the
first complaint were ‘‘identical’’ to the allegations in the
second complaint. The court concluded that, accord-
ingly, it ‘‘had the power to dismiss [the second action]
on May 17, 2013, because there were two lawsuits that
were pending at the identical time.’’ The defendant did
not file a motion to open or set aside the judgment in
the second action, nor did he file any affidavits setting
forth good cause to open or set aside that judgment.6
During the hearing, the court acknowledged that it may
have been procedurally incorrect for the defendant to
file a motion to dismiss rather than a motion to open
the judgment. The court asked whether the plaintiff
would consent to opening the judgment if the defendant
filed a motion to open; the plaintiff’s counsel declined
to do so. The court, Hon. Kevin Tierney, judge trial
referee, did not open or set aside the default judgment
before granting the defendant’s motion to dismiss the
second action based on the prior pending action doc-
trine. This appeal followed.
On appeal, the plaintiff claims that the court did not
have authority to dismiss the second action after judg-
ment had been rendered in that action. We agree.
As a preliminary matter, we set forth the standard
of review. ‘‘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.
. . . [O]ur review of the trial court’s ultimate legal con-
clusion and resulting [decision to] grant . . . the
motion to dismiss will be de novo.’’ (Internal quotation
marks omitted.) Beecher v. Mohegan Tribe of Indians
of Connecticut, supra, 282 Conn. 134.
The defendant argues that the pendency of the first
action deprived the court of subject matter jurisdiction.
The defendant further claims that his filing of a motion
to dismiss was proper because, as articulated by the
court, subject matter jurisdiction issues arising from a
prior pending action ‘‘can be raised at any time regard-
less of the rules relating to the practice book.’’ We
disagree. Even if the prior pending action doctrine were
applicable to this case, it would not implicate the sub-
ject matter jurisdiction of the court.7 ‘‘[W]e observe that
‘although a motion to dismiss is the proper vehicle to
raise the issue of a prior pending action, the doctrine
does not truly implicate subject matter jurisdiction.’
Gaudio v. Gaudio, [23 Conn. App. 287, 294, 580 A.2d
1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990)];
see also Halpern v. Board of Education, [196 Conn.
647, 652 n.4, 495 A.2d 264 (1985)]; In re Jessica M., [71
Conn. App. 417, 426–27, 802 A.2d 197 (2002)] (declining
to review claim raising prior pending action doctrine for
first time on appeal, because subject matter jurisdiction
not implicated).’’ Bayer v. Showmotion, Inc., 292 Conn.
381, 403, 973 A.2d 1229 (2009).
‘‘While courts have an inherent power to open, cor-
rect and modify judgments . . . the duration of this
power is restricted by statute and rule of practice. In
order for a trial court to open a civil judgment, a motion
to open or set aside must be filed within four months of
the date that judgment is rendered.’’ (Citation omitted.)
Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert.
denied, 215 Conn. 812, 576 A.2d 541 (1990). No such
motion was filed by the defendant within four months
of the March 26, 2013, judgment, pursuant to General
Statutes § 52-2128 and Practice Book § 17-4, which pro-
vide the procedure for opening a default judgment. See
Brookfield v. Boulder Spring Water Co., 196 Conn. 355,
358, 493 A.2d 862 (1985) (relying on General Statutes
§ 52-212 and Practice Book § 377 [now § 17-43]).
‘‘Unless otherwise provided by law and except in such
cases in which the court has continuing jurisdiction,
any civil judgment or decree rendered in superior court
may not be opened or set aside unless a motion to open
or set aside is filed within four months succeeding the
date on which notice was sent.’’ Practice Book § 17-
4 (a).
The statutory limitation imposed on motions to open
judgments does not implicate the court’s jurisdiction.
Rather, our Supreme Court has explained that General
Statutes ‘‘§ 52–212a9 operates as a constraint, not on
the trial court’s jurisdictional authority, but on its sub-
stantive authority to adjudicate the merits of the case
before it.’’ Kim v. Magnotta, 249 Conn. 94, 104, 733
A.2d 809 (1999). Moreover, where a trial court has
opened and modified its judgment in the absence of a
motion to open, this court has reversed the court’s
ruling on the ground that the trial court lacked authority
to open the judgment. See Sanzo v. Sanzo, 137 Conn.
App. 216, 217–18, 48 A.3d 689 (2012). In Sanzo, this
court concluded that ‘‘because none of the parties filed
a motion to open, the [trial] court lacked the authority
to modify substantively the judgment rendered at the
hearing . . . .’’ Id., 222. This principle dates back to
the jurisprudence of our Supreme Court of Errors,
which recognized that a defendant’s motion to erase or
strike a plaintiff’s motion for default judgment was not
a plea to the jurisdiction; rather, a defendant’s remedy
is to move to open the default and set the judgment
aside. See Paiwich v. Krieswalis, 97 Conn. 123, 127–28,
115 A. 720 (1921).
In the present case, the trial court lacked authority
to open the judgment because the defendant never filed
a motion to open pursuant to § 52-212. The default judg-
ment was rendered on March 26, 2013, and the defen-
dant filed his motion to dismiss on May 20, 2013.
Although the defendant filed his motion to dismiss
within the four month time limit imposed by § 52-212,
the motion to dismiss did not satisfy the requirements
of § 52-212 (a), specifically as to ‘‘reasonable cause, or
that a good cause of action or defense in whole or in
part existed at the time of the rendition of the judgment
or the passage of the decree, and that the plaintiff or
defendant was prevented by mistake, accident or other
reasonable cause from prosecuting the action or making
the defense.’’ Also, the motion to dismiss was not veri-
fied by the oath of the defendant or his attorney, and did
not particularly set forth the reason why the defendant
failed to appear. Therefore, the court’s dismissal of the
plaintiff’s action against the defendant was improper.
The judgment is reversed and the case is remanded
with direction to reinstate the judgment for the plaintiff.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The docket sheet for the second action indicates that the plaintiff filed
a motion for default for failure to appear pursuant to Practice Book § 17-
23 et seq. The docket entry appears to be in error.
2
Practice Book (2013) § 10-30 provides in relevant part: ‘‘Any defendant,
wishing to contest the court’s jurisdiction, may do so even after having
entered a general appearance, but must do so by filing a motion to dismiss
within thirty days of the filing of an appearance. . . .’’
3
Practice Book § 17-4 (a) provides: ‘‘Unless otherwise provided by law
and except in such cases in which the court has continuing jurisdiction,
any civil judgment or decree rendered in the superior court may not be
opened or set aside unless a motion to open or set aside is filed within four
months succeeding the date on which notice was sent. The parties may waive
the provisions of this subsection or otherwise submit to the jurisdiction of
the court.’’
4
The trial court, Hon. Kevin Tierney, judge trial referee, noted a discrep-
ancy as to the exact date of withdrawal on the state Judicial Branch website.
The website has two electronic entries regarding the plaintiff’s motion to
withdraw. One entry is dated May 23, 2013, and includes hyperlinked content.
The second entry is dated May 28, 2013, and is not hyperlinked. This discrep-
ancy was discussed during the hearing on the defendant’s motion to dismiss.
Both parties have agreed that for the limited issue presented on appeal,
whether the actual date of withdrawal was May 23, 2013, or May 28, 2013,
is immaterial.
5
In Bayer v. Showmotion, Inc., 292 Conn. 381, 393 n.8, 973 A.2d 1229
(2009), our Supreme Court stated that ‘‘the trial court properly could have
taken judicial notice of the contents of the prior pending file.’’
6
At oral argument before this court, the defendant stated that he opted
not to file a motion to open the judgment because the ‘‘plaintiff’s counsel
advised the [trial] court that if a motion to open were or had been filed,
that they would defend that and argue against it vigorously.’’ The defendant
claims that the plaintiff should have ‘‘withdraw[n] the action it did not intend
to prosecute before or concurrent with commencing an identical action, to
avoid the mistake and surprise which here befell the defendant.’’ The defen-
dant further asserts that he was not procedurally required to open the
judgment before filing a motion to dismiss on the basis of the prior pending
action doctrine.
7
On appeal, the plaintiff also claims that the court improperly granted
the defendant’s motion to dismiss on the basis of the prior pending action
doctrine. Specifically, the plaintiff asserts that, as of July 22, 2013, the date
of the hearing on the motion, the first action had been withdrawn, and
furthermore, the second action was not pending because a default judgment
had been rendered. We agree. ‘‘The prior pending action doctrine permits
the court to dismiss a second case that raises issues currently pending
before the court.’’ (Emphasis added.) Cumberland Farms, Inc. v. Groton,
247 Conn. 196, 216, 719 A.2d 465 (1998). On March 26, 2013, before the
defendant filed his motion to dismiss, the court rendered a default judgment
in favor of the plaintiff with respect to the second action. In Salem Park,
Inc. v. Salem, 149 Conn. 141, 176 A.2d 571 (1961), our Supreme Court
overruled a plea in abatement made on the ground that a prior action
involved the same land and the same issues on the basis that the judgment
in the prior action had been rendered and had not been set aside. Salem
Park, Inc., espouses the principle that if a judgment in a prior action has
been rendered and has not been set aside on appeal, there is no action
‘‘pending’’ within the meaning of the prior pending action doctrine. Id.,
144–45. Once a case has been withdrawn, as here, there is no action pending
to implicate the prior pending action doctrine. See, e.g., Fayerweather v.
Monson, 61 Conn. 431, 436–37, 23 A. 878 (1892) (when creditors withdrew
their petition from court of probate, petition no longer pending, and court
could not subsequently revive petition). Because the court did not have
authority to grant the defendant’s motion to dismiss, however, there is no
need to address this claim further.
8
General Statutes § 52-212 provides: ‘‘(a) Any judgment rendered or decree
passed upon a default or nonsuit in the Superior Court may be set aside,
within four months following the date on which it was rendered or passed,
and the case reinstated on the docket, on such terms in respect to costs as
the court deems reasonable, upon the complaint or written motion of any
party or person prejudiced thereby, showing reasonable cause, or that a
good cause of action or defense in whole or in part existed at the time of
the rendition of the judgment or the passage of the decree, and that the
plaintiff or defendant was prevented by mistake, accident or other reason-
able cause from prosecuting the action or making the defense. (b) The
complaint or written motion shall be verified by the oath of the complainant
or his attorney, shall state in general terms the nature of the claim or defense
and shall particularly set forth the reason why the plaintiff or defendant
failed to appear. (c) The court shall order reasonable notice of the pendency
of the complaint or written motion to be given to the adverse party, and
may enjoin him against enforcing the judgment or decree until the decision
upon the complaint or written motion.’’
9
General Statutes § 52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the court has continuing
jurisdiction, a civil judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or set aside is filed within
four months following the date on which it was rendered or passed. . . .’’