Opinion
No. CV 095030093
December 14, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)
The plaintiffs, Janet Gello and Gello Brothers, Inc., filed an action against the defendants, Richard Stevens and Shirley Stevens, in 2007 which was dismissed in 2008 because the plaintiffs had failed to comply with the requirements of § 52-48(b). The plaintiffs commenced this action on June 16, 2009. The defendants are now requesting that this court dismiss this action, too, due to a lack of subject matter jurisdiction. They filed a Motion to Dismiss on November 4, 2009. The plaintiffs filed their Objection to the Motion to Dismiss on November 19, 2009. The court heard oral argument at short calendar on September 20, 2010. For reasons more fully set forth herein, this court denies the motion to dismiss.
In their complaint, the plaintiffs allege that Gello Brothers, Inc. loaned Richard Stevens $20,514 on or about February 23, 2004 and that Janet Gello loaned Richard Stevens $29,197.32. The complaint also alleges that Shirley Stevens promised both plaintiffs that she would repay the debts of Richard Stevens on or before May 7, 2004. The plaintiffs claim that the defendants have not repaid the debts and continue to owe them money. They also allege unjust enrichment and that Shirley Stevens' promises were false and misleading.
"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." Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, CT Page 1418 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
I.
In their memorandum of law in support of their motion to dismiss, the defendants raise several arguments as to why the court lacks subject matter jurisdiction over the plaintiffs' claims. First, regarding all five of the counts in the complaint, the defendants argue that General Statutes § 52-581 establishes a three-year statute of limitations for oral contracts actions and therefore the plaintiffs' claims are time barred because their claims were filed more than three years after they accrued. The plaintiffs respond that General Statutes § 52-576, establishing a six-year limitation on contract actions, is the proper statute to use, therefore, their claims are timely as a result. As a matter of law, both the plaintiffs and the defendants are incorrect in arguing that a statute of limitations may be asserted on a motion to dismiss.
The defendants argue § 52-581 is the proper statute because the contract at issue was an oral agreement. The plaintiffs argues that § 52-581 applies only to executory contracts and § 52-576 is the applicable statute of limitations because the oral agreement between the plaintiffs and Shirley Stevens was not executory. As discussed below, the merits of each argument will not be reached because a motion to dismiss is not the proper procedural vehicle to raise a statute of limitations argument.
A statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss.]" Ross Realty Corp v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless "[w]here . . . 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 . . ." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993). See also, Doty v. Mucci, 283 Conn. 800, 806, 679 A.2d 945 (1996).
Regardless of whether § 52-581 or § 52-576 is the proper statute of limitation in this case, it is procedurally improper for the defendants to raise the statute of limitations as a ground for their motion to dismiss. The plaintiffs' causes of action are based upon common-law contract claims. Since the plaintiffs' claims are not statutorily based causes of action, the statute of limitations is a procedural, not a jurisdictional, prerequisite. The defendants, therefore, cannot use the statute of limitations as a ground to challenge the jurisdiction of the court. Accordingly, their motion to dismiss all of the counts based on the statute of limitations is denied.
II.
In their second argument, the defendants argue that Shirley Stevens' promise to pay back the money Richard Stevens owed to the plaintiffs amounted to a suretyship and therefore needed to be in writing as required by § 52-550, the statute of frauds. They contend that the court lacks subject matter jurisdiction because an oral promise must be memorialized in order to satisfy the requirements of § 52-550. The plaintiffs respond that because they fulfilled their obligations under the contract, it does not matter that the contract was oral because § 52-550 no longer applies. Similar to the statute of limitations, the parties' reliance upon the statute of frauds in support of or in opposition to a motion to dismiss is misplaced.
§ 52-550 provides in pertinent part: "No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: . . . (2) against any person upon any special promise to answer for the debt, default or miscarriage of another . . . (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars."
Relying upon the language of § 52-550, the court held in McCutcheon Burr, Inc. v. Berman, that a failure to comply with General Statutes § 20-325a(b) did not amount to a jurisdictional impediment and therefore could not be asserted as a ground for a motion to dismiss. 218 Conn. 512, 527 n. 16, 590 A.2d 438 (1991). Although § 20-325a(b) states specifically that "[n]o person . . . shall commence or bring any action," the court noted the similar language of both §§ 52-550 and 52-577 and observed that "[n]either of those statutes creates a jurisdictional bar." Id.; see Anderson v. Schieffer, 35 Conn.App. 31, 37 n. 8, 645 A.2d 549 (1994) (applying same reasoning in holding failure to comply with § 20-325a(a) does not create a jurisdictional bar).
The court also relied upon the language in § 52-577, the statute of limitations for tort actions.
General Statutes § 20-325a(b), entitled "Actions to recover commissions arising out of real estate transactions," establishes formalities that real estate brokers must follow in order to receive commissions.
Since appellate decisions have explicitly stated that the § 52-550 does not create a jurisdictional bar, it is improper for the defendants to use the statute of frauds as a vehicle to assert lack of subject matter jurisdiction on a motion to dismiss. Accordingly, the motion to dismiss the claim relating to the oral agreement between Shirley Stevens and the plaintiffs is denied.
III.
Finally, the defendants argue that the court lacks subject matter jurisdiction as a result of General Statutes § 52-592, the accidental failure of suit statute. General Statutes § 52-592 gives a plaintiff a second chance to recommence an action if the action has been dismissed on procedural grounds. Henriquez v. Allegre, CT Page 1420 68 Conn.App. 238, 243-44, 789 A.2d 1142 (2002). The proper way to challenge the applicability of § 52-592 is to plead it as a special defense pursuant to Practice Book § 10-50. LaBow v. LaBow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).
However, "although a motion to dismiss may not be the proper procedural vehicle for asserting that an action is not saved by General Statutes § 52-592, our Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss." Henriquez v. Allegre, supra, 241; see Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 606, 806 A.2d 567 (2002) (relying on this reasoning in deciding merits of motion to dismiss regarding § 52-592).
Subsequent decisions have interpreted the term "when the plaintiff does not object to the use of the motion to dismiss" to mean that a plaintiff must specifically object to a defendant using § 52-592 as grounds for motion to dismiss, instead of simply raising an objection to the motion to dismiss. See Labow v. Labow, supra, 750-52 (noting that the plaintiff's abstract assertion did not amount to an adequate objection to defendant's use of a motion to dismiss to challenge the applicability of § 52-592 on subject matter jurisdiction grounds); O'Neill v. Carbonneau, Superior Court, judicial district of New London at Norwich, Docket No. 126151 (May 30, 2003, Martin, J.) (stating plaintiff's failure to object to defendant's use of motion to dismiss to challenge applicability of § 52-592 allowed court to address merits of motion to dismiss).
Because the plaintiffs did not object to the defendants' use of a motion to dismiss as a procedural vehicle to challenge § 52-592 in this case, the court considers the merits of the arguments regarding § 52-592.
The defendants argue that although the plaintiffs had one year pursuant to the statute to recommence an action that was dismissed, the measuring date for that one year was May 2007, when the failure of the action occurred. Since the plaintiffs commenced the subsequent action over a year later, the defendants argue that their claims are time barred. The plaintiffs respond that November 7, 2008, the date of dismissal of the earlier action, is the proper date in measuring the one-year extension provided by the statute. Since they commenced their subsequent action on June 16, 2009, within the one-year period, the plaintiffs argue their claims are not barred. Although neither of the dates put forth by the defendants and the plaintiffs are the correct measuring dates for the one-year statutory period, this court finds that the plaintiffs recommenced their suit within the one-year period allowed by § 52-592.
In their memorandum of law in support of their motion to dismiss, the defendants state that the measuring date of the accidental failure of suit is May 2007, "when the failure took place and when the Plaintiffs were or should have been aware of it . . ." It appears that the defendants are referring to May 22, 2007, the amended return date that was in violation of § 52-48(b).
General Statutes § 52-592(a) states 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 . . . the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ." (Emphasis added.) The date when the original action was determined is the date the plaintiff received actual notice of dismissal of the previous action. Henriquez v. Allegre, supra, 68 Conn.App. 245-47. Generally, there is a rebuttable presumption that the plaintiff has received notice of the dismissal. Id., 247.
The plaintiffs satisfied the first requirement of § 52-592 because the previous action was dismissed for lack of subject matter jurisdiction.
Although the plaintiffs did not allege a date when they received the notice of dismissal of the previous action, the procedural history of this case makes it impossible for the plaintiffs' claims to be beyond the one-year statutory limitation. The plaintiffs commenced the present action against the defendants on June 16, 2009. Even assuming, arguendo, that the date of dismissal of the previous action is the proper measuring date for § 52-592, the plaintiffs filed the present action well within the one-year limitation. Since the notice of dismissal could only come after the previous action was dismissed, it would be impossible for the notice date to be any earlier than November 7, 2008. It is therefore reasonable to conclude that the plaintiffs filed the present action within one year of the determination of the original action in accordance with § 52-592. For this reason, the court denies the defendants' motion as to the § 52-592 claim.
For all the foregoing reasons, this court denies the defendants' motion to dismiss.