Opinion
No. CV09-5027886 S
December 10, 2010
RULING ON MOTION TO DISMISS
At issue is whether the court should grant the defendants' motion to dismiss the plaintiff's amended complaint on the ground that the plaintiff has not attached a good faith certificate or a written opinion by a similar health care provider, pursuant to General Statutes § 52-190a. The court denies the motion.
FACTS
The plaintiff, Michael Broderick, commenced the present action by service of process against the defendants, Melvyn Pond, D.V.M. and the New Haven Central Hospital for Veterinary Medicine, on February 24, 2009. The one-count complaint sounds in veterinary malpractice. Paragraph 11 of the original complaint alleged damages for the loss of the plaintiff's family pet. Paragraph 12 of the original complaint alleged that, "[a]s a direct and proximate result of the defendants' deviation from the standard of care . . . the plaintiff suffered emotional distress and anxiety." (Emphasis added.) The defendants filed a request to revise Paragraph 12 on April 20, 2009, claiming that Connecticut does not recognize emotional damages for the loss of a pet. On procedural grounds, the court, Licari, J. sustained the plaintiff's objection to the defendants' request to revise. The defendants filed a motion to strike Paragraph 12 on the same grounds, and the court, Licari, J., granted the defendants' motion to strike. The court cited Myers v. Hartford, 84 Conn.App. 395, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 852 (2004), which holds that; "[Connecticut] common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet." Id. In response to Judge Licari's granting of the defendants' motion to strike, the plaintiff filed an amended complaint deleting Paragraph 12. This "amended pleading [operated] as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original [complaint.]" Royce v. Westport, 183 Conn. 177, 179 (1981). It was only after the plaintiff filed his amended complaint deleting Paragraph 12, that the defendants filed the present motion to dismiss claiming noncompliance with General Statutes § 52-190a.
The amended complaint alleges the following facts. On or about February 19, 2007, the plaintiff placed his dog, Brandy, in the care of the defendants. The dog had been diagnosed with a mass in its left adrenal gland, and the plaintiff placed it in the defendants' care so that surgery could be performed to remove the mass from the gland. The dog died shortly after the surgery. The plaintiff alleges the defendants deviated from the applicable standard of care in their treatment of the dog before, during and after the surgery. Plaintiff's counsel conceded at oral argument that the only damages he is claiming is the monetary value of the dog, which he estimates at $2,000.
The defendants filed the present motion to dismiss and a memorandum of law in support thereof on May 17, 2010. The plaintiff in turn filed an objection to the motion and a memorandum of law in support thereof on July 15, 2010. The defendants then filed a reply memorandum on July 22, 2010. The court heard the matter on December 3, 2010.
DISCUSSION
"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 filing an appearance." Practice Book § 10-30. "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.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10-31. "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Internal quotation marks omitted.) Golodner v. Women's Health Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
"A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action. However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a (c). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). The Appellate Court has suggested that defendants may waive the requirements of § 52-190a: "Although the defendants might have waived this statutory requirement enacted for their benefit, they did not do so . . ." Id., 586.
The defendants move to dismiss the present action on the ground that the plaintiff has not complied with § 52-190a because he has attached neither a good faith certificate nor a written opinion by a similar health care provider to his complaint. They argue that the present action is governed by § 52-190a because the amended complaint alleges medical malpractice, per the criteria for medical malpractice actions established by Trimel v. Lawrence Memorial Rehabilitation Center Hospital, 61 Conn.App. 353, 358, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001): "(1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." They also argue that the defendants qualify as "health care providers" under the definition provided by General Statutes § 52-184b, which is relied upon in §§ 52-184c and 52-190a. In support of their motion, the defendants cite to Phillips v. Baus, Superior Court, judicial district of Danbury, Docket No. CV 05 4003065 (May 24, 2007, Shaban, J.) in which the court analogized veterinary care to medical care, and Saffran v. Fairfield Equine Associates, P.C., Superior Court, judicial district of Danbury, Docket No. CV 08 5004976 (September 17, 2008, Sommer, J), in which the court granted the defendants' motion to dismiss the plaintiff's veterinary malpractice action because the plaintiff's complaint did not comply with § 52-190a. The court held that § 52-190a governed the plaintiff's action because the complaint met the three Trimel criteria. The plaintiff objects to the motion on the ground that § 52-190a does not and should not apply to veterinary malpractice actions because of the prohibitive costs that plaintiffs would incur if they had to comply with the statute's requirements.
Section 52-184b(a) provides: "`[H]ealth care provider' means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course or scope of his employment."
Section 52-190a was "drafted as part of, or in response to, tort reform and [is] therefore in derogation of the common law . . . It is axiomatic that statutes in derogation of the common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in [their] scope by the mechanics of construction." (Citation omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 37, 848 A.2d 418 (2004). "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z.
Section 52-190a applies to "civil action[s] . . . filed to recover damages resulting from personal injury or wrongful death." Pursuant to General Statutes § 22-350, "all dogs are deemed to be personal property." Thus, the plaintiff himself cannot be deemed to have suffered a "personal injury or wrongful death." Furthermore, § 52-190a provides that the required good faith certificate must demonstrate a good faith belief that "there has been negligence in the care or treatment of the claimant." (Emphasis added.) The claimant in the present action is the owner of the dog, not the dog itself, and he cannot formally represent its interests in a legal action. Therefore, despite the defendants' arguments and citations to the contrary, the court concludes, based on its strict construction of the statute, that the plaintiff is not required to provide a good faith certificate or a written opinion by a similar health care provider, where the plaintiff cannot (per Myers, supra) allege that he suffered damages resulting from personal injury or wrongful death or that he received the care or treatment now at issue.
PROCEDURAL DEFICIENCIES
The court further concludes that the present motion should also be denied because it was untimely filed by the defendants. Specifically, the present motion was filed more than one year after the defendants entered their general appearance. "It is fundamental that jurisdiction over a person can be obtained by waiver . . . Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, `[a]ny 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.' Practice Book § 10-30 . . ." Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). Practice Book § 10-32 provides in relevant part: "Any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by [§] 10-30." Therefore, "[t]he fact that the defendant [fails] to file a motion to dismiss within thirty days of filing an appearance constitute[s] a waiver of its right to contest the court's personal jurisdiction over the defendant." Berzins v. Berzins, 105 Conn.App. 648, 649-50 n. 1, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008).
At short calendar, the defendant argued that the thirty-day rule contained in Practice Book § 10-30 is inapplicable to the present motion because the motion challenges the plaintiffs' compliance with § 52-190a and, per Votre, therefore "does not contest the court's jurisdiction." Durkin v. Intevac, Inc., 258 Conn. 454, 480, 782 A.2d 103 (2001). Durkin is inapposite to the present motion, however, because the court's conclusion was based on the fact that the defendant moved to dismiss on the specific ground of forum non conveniens. Durkin does not address the issue of whether a motion to dismiss for failure to comply with § 52-190a is jurisdictional in nature. It is also manifestly true that, unlike with the doctrine of forum non conveniens, the grounds for dismissal for noncompliance with § 52-190a are immediately apparent from the face of the writ, summons and complaint. Moreover, the defendant need only read what he or she has been served to determine whether there is compliance with § 52-190a. It is "the complaint or initial pleading," to which the "statutorily required written opinion [must be] annexed." Votre at 584. When challenged to offer a legitimate reason why a party would not immediately file a motion to dismiss when faced with an allegedly defective complaint under § 52-190a, counsel could offer none. Indeed, "[b]ecause the purpose of § 52-190a is to require the opinion prior to the commencement of the action . . ." (see, Votre at 585) it would make little sense to allow a defendant to wait more than thirty days after he has filed an appearance to file a motion to dismiss based on noncompliance with § 52-190a. The defendant is, after all, chargeable with knowledge of the contents of the writ, summons and complaint in a case in which he or she has filed an appearance. The defendant has not offered, nor can the court haruspicate, a legitimate reason why a defendant would not immediately file a motion to dismiss claiming a § 52-190a deficiency.
The court in the present case is guided by Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV 09 5010404 (July 20, 2010, Cosgrove, J.) ( 50 Conn. L. Rptr. 199). In Sanabria, where a motion to dismiss was filed for failure to comply with § 52-190a, the court denied the motion and held "that the defendant . . . waived his right to challenge the adequacy of the written opinion" because the motion "challeng[ed] the court's personal jurisdiction over the defendant . . . and thus the timing of the filing of the motion [was] controlled by the Practice Book." Id., 199. The court determined: "[F]rom the day the complaint was filed, the defendant should have been able to determine whether or not the provisions of § 52-190a (a) have been complied with and whether the complaint should have been subject to dismissal." (Internal quotation marks omitted.) Id., 201. It also determined that the statute's written opinion requirement "fundamentally establishes a precondition over the court's exercise of its jurisdiction over the person of an individual physician." Id. It concluded: "Altogether, the requirement that the written opinion be attached to a plaintiff's complaint, the defendant-specific requirements for the contents of the opinion, the remedy of dismissal for a failure to file the required opinion and Votre's acknowledgment that the requirements of § 52-190a may be waived persuade the court that the issue of whether a plaintiff has complied with § 52-190a implicates the court's personal jurisdiction over the person of a defendant." Id.
In coming to its conclusion, the court noted that the previous motions filed in the case had "required the expenditure of judicial resources to decide" and that this expenditure "could have been avoided if the defendants had raised their challenge to the jurisdiction of the court in a timely fashion. The sufficiency of a § 52-190a opinion letter is a threshold question that ought to [be] raised and addressed in an expeditious fashion. It seems . . . that the Practice Book's thirty-day time frame for raising these issues is appropriate . . . Without such a limiting time frame a defendant could sit on his rights, expend the time and energy of his opponent and the court on pleadings and motions practice and then at the last hour raise his grounds for dismissal." Id.
The court in the present action is persuaded by the Sanabria court's reasoning and adopts it in deciding the defendants' motion. The court does not look "favorably upon defendants who sit on their rights and then surprise the court and the plaintiffs at the eleventh hour" with a motion that "disposes of [the] plaintiffs' claims." Lopez v. Patel, 407 N.J.Super. 79, 91, 969 A.2d 510 (2009). "[Courts] place a premium on prompt action by both plaintiffs and defendants. In this way, the resources and time of the parties will not be wasted by the continuation of unnecessary litigation." Knorr v. Smeal, 178 N.J. 169, 176, 836 A.2d 794 (2003). In the present action, the defendants could have taken prompt action and moved to dismiss for failure to comply with § 52-190a immediately upon seeing that neither a good faith certificate nor a written opinion by a similar health care provider was attached to the original complaint. While the defendants' current attorney did not file his appearance until September 25, 2009, "° `[i]t is hornbook law that clients generally are bound by the acts of their attorneys.'" Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 509 (2010). Present counsel also did not file the present motion to dismiss until May 17, 2010, well after the September 25, 2009 filing of his appearance.
The court has already decided upon several motions and requests in the present action, including a request to revise and a motion to strike. It has expended judicial resources in deciding each motion and request. "[I]f [the] defendant's motion were to be granted, then the attorneys labored needlessly and the judicial system expended its resources on a case that" may "not have been on the calendar had [the] defendant acted timely." Knorr v. Smeal, supra, 178 N.J. 180. The "mechanistic application" of § 52-190a in the present action also "would . . . inflict obvious and unnecessary harm on individual plaintiffs without advancing [the] legislative purposes." (Internal quotation marks omitted.) Lopez v. Patel, supra, 407 N.J.Super. 92. "[T]he [l]egislature could not have intended" with § 52-190a "to allow an otherwise meritorious claim to proceed indefinitely at great expense to both parties, only to have [the] defendant obtain a dismissal . . . that should have been asserted much earlier in the process." Id., 182. The court thus adopts the Sanabria court's reasoning and holds that a motion to dismiss for failure to comply with § 52-190a is subject to the thirty-day rule contained in Practice Book § 10-30. Because the present motion was filed well after the thirty-day period provided by the rule, it is untimely and must, therefore, be denied.
Finally, apart from the requirement that the defendant file a motion to dismiss within thirty days of filing his appearance under Practice Book § 10-30, the court holds that the defendants have waived the grounds asserted in support of their motion, as said motion is untimely. As stated by the court in Sanabria: "[T]he alleged defect in the plaintiff's written opinion [or lack of opinion in the case at bar] was knowable to the defendants from the commencement of this action . . . Accordingly, the defendants were obligated to challenge the adequacy of the opinion within a reasonable time of the filing of the complaint, or else waive the right to do so. Given the lapse of an entire year between the filing of the plaintiff's complaint and the filing of the defendants' motion to dismiss, and for the policy reasons discussed [above], the court concludes that the defendants have waived their right to object to the [lack of a] written opinion." (Emphasis added.)
CONCLUSION
For the foregoing reasons, the court denies the defendants' motion to dismiss the plaintiff's amended complaint.