Miller v. Bd. of Educ. of Bridgeport

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JOSEPHINE MILLER v. BOARD OF
EDUCATION OF THE CITY OF
BRIDGEPORT ET AL.
(AC 40333)
Elgo, Bright and Moll, Js.
Syllabus
The plaintiff brought this action in May, 2015, against the defendants alleging
claims for quantum meruit and unjust enrichment related to the payment
for certain legal services she allegedly had provided. The plaintiff had
brought an action alleging similar claims in 2010, which was dismissed
by the trial court. This court affirmed that dismissal in October, 2013.
During the pendency of the 2010 action, the plaintiff brought an action
in 2012 alleging race discrimination claims, which was removed to fed-
eral court and dismissed. The plaintiff’s appeal in that action was dis-
missed in October, 2014. The trial court granted the defendants’ motion
to dismiss the present action, concluding, inter alia, that the plaintiff
could not avail herself of the accidental failure of suit statute (§ 52-592
[a]), which requires a new action for the same cause to be commenced
within one year after the determination of the original action, because
she had failed to commence the present action within one year after
the determination of the 2010 action, which was the original action for
purposes of § 52-592 (a). On the plaintiff’s appeal to this court, held that
the trial court properly granted the defendants’ motion to dismiss the
present action as untimely, the plaintiff having failed to file this action
within the one year savings period: the 2010 action, in which the plaintiff
raised claims sounding in quantum meruit and unjust enrichment like
in the present action, was the original action for purposes of § 52-592,
and the 2012 action, in which the plaintiff asserted race discrimination
under a federal statute, was not for the same cause as the present action
and, thus, its disposition had no bearing on the timeliness of the present
action; accordingly, to take advantage of § 52-592, the plaintiff would
have had to commence the present action within one year after the
determination of the 2010 action, the dismissal of which this court
affirmed on appeal in October, 2013, and because the plaintiff com-
menced the present action in May, 2015, which was outside the one
year period, she could not take advantage of the savings statute.
Argued December 10, 2018—officially released March 12, 2019
Procedural History
Action to recover damages for, inter alia, quantum
meruit, and for other relief, brought to the Superior
Court in the judicial district of Danbury, where the
court, Shaban, J., granted the plaintiff’s motion to cite
in the City of Bridgeport as a defendant; thereafter, the
court, Truglia, J., granted the defendants’ motion to
dismiss and rendered judgment thereon; subsequently,
the court granted the defendants’ motion to correct and
issued a corrected memorandum of decision, and the
plaintiff appealed to this court. Affirmed.
Josephine S. Miller, self-represented, the appellant
(plaintiff).
John P. Bohannon, deputy city attorney, for the
appellees (defendants).
Opinion
PER CURIAM. The plaintiff, Josephine Miller, appeals
from the judgment rendered by the trial court following
its granting of the motion to dismiss filed by the defen-
dants, the Board of Education of the City of Bridgeport
(board), Mark Anastasi, and the City of Bridgeport
(city).1 On appeal, the plaintiff claims that the trial court
erred in dismissing the action as untimely because it
was saved by the accidental failure of suit statute, Gen-
eral Statutes § 52-592 (a),2 and, therefore, should have
been allowed to proceed. We disagree and, accordingly,
affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On June 23, 2010, the plaintiff, repre-
senting herself, commenced an action in the Superior
Court seeking payment from the board for legal services
she allegedly provided in 2010 to Andrew Cimmino, a
defendant in an action brought in federal court; see
Lyddy v. Cimmino, United States District Court,
Docket No. 3:06CV01420 (CFD) (D. Conn.); whom the
plaintiff alleged was entitled to a defense and indemnifi-
cation by the board pursuant to General Statutes § 7-
101a (a).3 See Miller v. Board of Education, Superior
Court, judicial district of Fairfield, Docket No. CV-10-
6011406-S (2010 action). The claims raised by the plain-
tiff in the 2010 action sounded in quantum meruit and
unjust enrichment. On July 10, 2012, the court dismissed
the 2010 action on the basis of the plaintiff’s failure to
appear at trial. On July 24, 2012, the plaintiff filed a
timely motion for reconsideration of the judgment of
dismissal. On November 19, 2012, the trial court denied
the plaintiff’s motion for reconsideration. On December
10, 2012, the plaintiff appealed from the judgment of
dismissal to this court, which affirmed the judgment
on October 1, 2013. See Miller v. Board of Education,
146 Conn. App. 901, 75 A.3d 98 (2013) (per curiam).
Meanwhile, on August 6, 2012, while the plaintiff’s
motion for reconsideration in the 2010 action was pend-
ing, the plaintiff, representing herself, commenced
another action in the Superior Court. See Miller v.
Board of Education, Superior Court, judicial district of
Danbury, Docket No. CV-XX-XXXXXXX-S (2012 action). In
the 2012 action, the plaintiff asserted race discrimina-
tion claims against the board and Anastasi, the city
attorney, in his official and individual capacities, pursu-
ant to 42 U.S.C. § 1981. The plaintiff did not raise, how-
ever, a claim of quantum meruit or unjust enrichment
in the 2012 action and did not purport to file the 2012
action pursuant to § 52-592. On August 31, 2012, the
board filed a notice of removal of the 2012 action to
the United States District Court for the District of Con-
necticut. On July 30, 2014, the federal District Court
ordered, among other things, that the 2012 action be
dismissed with prejudice as a sanction pursuant to rule
11 of the Federal Rules of Civil Procedure for the plain-
tiff’s knowingly making false allegations in the com-
plaint. See Miller v. Board of Education, United States
District Court, Docket No. 3:12CV01287 (JAM) (D.
Conn. July 30, 2014). On September 27, 2014, the plain-
tiff filed a notice of appeal to the United States Court
of Appeals for the Second Circuit. On December 10,
2014, the Second Circuit issued a mandate dismissing
the plaintiff’s appeal, effective October 29, 2014.
On May 6, 2015, the plaintiff commenced the present
action against the board and Anastasi in his official
and individual capacities, asserting claims sounding in
quantum meruit and unjust enrichment. On August 17,
2015, after obtaining the court’s permission, the plaintiff
filed an amended complaint, which added the city as a
defendant. On November 16, 2015, the defendants filed
an answer and special defenses. On November 18, 2016,
the defendants filed a motion to dismiss asserting, inter
alia, that the present action was commenced beyond
the one year savings provision of § 52-592 (a). On April
7, 2017, the trial court granted the defendants’ motion
to dismiss, concluding that (1) the plaintiff could not
avail herself of § 52-592 (a) because the dismissal of
the 2010 action resulted from the plaintiff’s lack of
diligence and her failure to appear at trial, and not one
of the grounds set forth in the statute to render it a
qualifying failed action; and (2) even if the plaintiff
could avail herself of § 52-592 (a), the plaintiff had failed
to commence the present action within one year after
the determination of the 2010 action, which was the
original action for purposes of § 52-592 (a).4 This
appeal followed.
‘‘We first set forth our standard of review governing
motions to dismiss. Our standard of review of a trial
court’s findings of fact and conclusions of law in con-
nection with a motion to dismiss is well settled. A find-
ing of fact will not be disturbed unless it is clearly
erroneous. . . . [W]here the legal conclusions of the
court are challenged, we must determine whether they
are legally and logically correct and whether they find
support in the facts . . . . Thus, our review of the trial
court’s ultimate legal conclusion and resulting [grant-
ing] of the motion to dismiss will be de novo. . . . A
motion to dismiss admits all facts well pleaded and
invokes any record that accompanies the motion,
including supporting affidavits that contain undisputed
facts.’’ (Footnote omitted; internal quotation marks
omitted.) Stevenson v. Peerless Industries, Inc., 72
Conn. App. 601, 606, 806 A.2d 567 (2002).5
On appeal, the plaintiff claims that the trial court
erroneously dismissed the present action as untimely.
Specifically, she argues: (1) the court improperly con-
cluded that § 52-592 (a) was not available to her based
on its finding that the 2010 action was dismissed as a
result of her lack of diligence and her failure to appear
at trial; and (2) the court improperly concluded that,
even if § 52-592 (a) were available to her, she failed to
commence the present action within the one year sav-
ings period.6 We conclude that, even if we assume,
arguendo, that the plaintiff could avail herself of § 52-
592 (a), she failed to commence the present action
within the one year savings period.7
Section 52-592 (a) provides in relevant part: ‘‘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 . . . 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 . . .
may commence a new action . . . for the same cause
at any time within one year after the determination
of the original action or after the reversal of the judg-
ment.’’ (Emphasis added.) ‘‘[U]nder the provisions of
§ 52-592 (a) ‘original action’ means the first action filed
within the time allowed by the applicable statute of
limitations.’’ Pintavalle v. Valkanos, 216 Conn. 412, 419,
581 A.2d 1050 (1990). Section 52-592 (c) provides: ‘‘If
an appeal is had from any such judgment to the Supreme
Court or Appellate Court, the time the case is pending
upon appeal shall be excluded in computing the time
as above limited.’’
Here, the 2010 action, in which the plaintiff raised
claims sounding in quantum meruit and unjust enrich-
ment, is the ‘‘original action.’’ The 2012 action, in which
the plaintiff asserted race discrimination claims pursu-
ant to 42 U.S.C. § 1981, was not for the ‘‘same cause’’ as
the present action, in which the plaintiff again asserted
claims sounding in quantum meruit and unjust enrich-
ment, and, thus, the disposition of the 2012 action has
no bearing on the timeliness of the present action under
§ 52-592 (a). See Peabody N.E., Inc. v. Dept. of Trans-
portation, 250 Conn. 105, 118, 735 A.2d 782 (1999) (con-
cluding that subsequent action in which plaintiff ‘‘relies
upon the same facts, makes the same allegations, and
seeks the same relief’’ is action for same cause).8 Thus,
to take advantage of § 52-592 (a), the plaintiff would
have had to commence the present action within one
year after the ‘‘determination’’ of the 2010 action.
On December 10, 2012, after the trial court had denied
her motion for reconsideration on November 19, 2012,
the plaintiff appealed from the July 10, 2012 judgment
dismissing the 2010 action, which this court affirmed
on October 1, 2013. Excluding the time that the 2010
action was pending upon appeal; see § 52-592 (c); we
conclude that the one year savings period under § 52-
592 (a) expired in 2014.9 Having commenced the present
action in May, 2015, the plaintiff could not take advan-
tage of the savings statute. Accordingly, we conclude
that the court properly granted the defendants’ motion
to dismiss the present action as untimely and rendered
judgment thereon.
The judgment is affirmed.
1
For purposes of clarity, we refer to the board, Anastasi, and the city
collectively as the defendants, and individually by name.
2
General Statutes § 52-592 (a) provides in relevant part: ‘‘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 . . . 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 . . . may
commence a new action . . . for the same cause at any time within one
year after the determination of the original action or after the reversal of
the judgment.’’
3
General Statutes § 7-101a (a) provides in relevant part: ‘‘Each municipal-
ity shall protect and save harmless any municipal officer, whether elected
or appointed, of any board, committee, council, agency or commission . . .
or any municipal employee, of such municipality from financial loss and
expense, including legal fees and costs, if any, arising out of any claim,
demand, suit or judgment by reason of alleged negligence, or for alleged
infringement of any person’s civil rights, on the part of such officer of such
employee while acting in the discharge of his duties.’’
4
On April 10, 2017, the court issued a corrected memorandum of decision
to correct a scrivener’s error.
5
‘‘[A]lthough a motion to dismiss may not be the appropriate procedural
vehicle for asserting that an action is not saved by . . . § 52-592, our
Supreme Court has held that a court properly may consider a motion to
dismiss in such circumstances when the plaintiff does not object to the use
of the motion to dismiss.’’ Stevenson v. Peerless Industries, Inc., supra, 72
Conn. App. 606 n.6. In the present case, because the plaintiff did not object
to the use of a motion to dismiss, the court properly decided the motion
on the merits.
6
In her appellate brief, the plaintiff also argues that the trial court failed
to articulate its decision with respect to a constitutional argument that she
raised. After filing this appeal, the plaintiff filed a motion for articulation,
which the trial court denied. The plaintiff did not file a motion for review
of the denial of her motion for articulation. To the extent that the plaintiff
asserts that the court erred in denying her motion for articulation, we decline
to review this claim. Pursuant to Practice Book § 66-5, ‘‘[t]he sole remedy
of any party desiring the court having appellate jurisdiction to review the
trial court’s decision on the motion [for articulation] filed pursuant to this
section . . . shall be by motion for review under Section 66-7.’’ Thus, the
plaintiff’s ‘‘pursuit of review and remedy through appeal is . . . inappropri-
ate.’’ Macellaio v. Newington Police Dept., 145 Conn. App. 426, 437–38, 75
A.3d 78 (2013).
7
Because we disagree with the plaintiff’s second argument, we need not
address the merits of the plaintiff’s first argument. In addition, as an alterna-
tive ground for affirmance, the defendants argue that the plaintiff lacks
standing to bring a direct claim for indemnification under General Statutes
§ 7-101a against a municipality. We note that, although the defendants frame
their argument as one of standing, the plaintiff did not assert a statutory
claim under § 7-101a. Rather, her claims sound in quantum meruit and unjust
enrichment, while relying on allegations that Cimmino was entitled to a
defense and indemnity by the board pursuant to § 7-101a. On the basis of
the record before us, we cannot conclude that the plaintiff lacked standing
to assert the claims that she raised.
8
The plaintiff argues that this court should overrule our Supreme Court’s
decisions in Peabody N.E., Inc. v. Dept. of Transportation, supra, 250 Conn.
105, and Pintavalle v. Valkanos, supra, 216 Conn. 412. ‘‘It is axiomatic that
. . . this court [is] without authority to overrule the decisions of our
Supreme Court.’’ West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15,
24, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).
9
In dismissing the present action, the trial court concluded that the one
year savings period of § 52-592 (a) began to run on October 1, 2013, when
this court affirmed the judgment dismissing the 2010 action. Thus, the court
implicitly concluded that the savings period expired on October 1, 2014.
We note that § 52-592 (c) provides that ‘‘the time the case is pending upon
appeal shall be excluded in computing’’ the savings period, suggesting that
the time between the entry of judgment and the filing of an appeal is included
in such computation. Given that the parties have not addressed the effect
of § 52-592 (c), and given that the present action is not saved pursuant to
§ 52-592 (a) regardless of whether the savings period expired on October
1, 2014, or some time prior thereto, we do not address the propriety of the
court’s conclusion that the savings period commenced on October 1, 2013.