Opinion
No. CV05 400 64 51 S
October 7, 2005
MEMORANDUM OF DECISION
Before the court is the defendants' motion to dismiss the plaintiffs' bill of discovery on the ground that the court lacks subject matter jurisdiction.
This action in equity was commenced when the plaintiffs, William Chanaca and Josephine Chanaca, filed a bill of discovery complaint on March 1, 2005, seeking the court's permission to conduct depositions and review documents prior to filing an actual lawsuit against the defendants, the town of Easton and the planning and zoning commission of the town of Easton. The plaintiffs allege that the information sought is necessary to determine whether they can bring a cause of action claiming that the defendants intentionally and deliberately sought to deprive them of their property rights by improperly denying them and others the opportunity to enforce the town's zoning regulations against Paul and Althea Falco, owners of property abutting the plaintiffs. The plaintiffs specifically allege that Paul Falco conducted a prohibited business activity on his residentially zoned property, and that the defendants over a period of years took no action against Falco and eventually promulgated a regulation for his benefit. The bill of discovery also recites that Althea Falco has worked as a secretary in the first selectman's office for a number of years.
The bill of discovery complaint alleges that the "illegal business consisted of the cutting, mulching and grinding of wood and wood products on the Falco property as well as the trucking of the finished products for sale outside of the town."
The defendants filed a motion to dismiss on May 2, 2005 claiming that the court lacks subject matter jurisdiction over the plaintiffs' claims. Pursuant to Practice Book § 10-31, the defendants have filed a memorandum in support of its motion and the plaintiffs have filed a memorandum of law in opposition on August 1, 2005.
The present action is the fourth time a claim relative to Falco's business activities has been brought before the Superior Court. In the first action, a number of neighbors initially sought to enjoin Falco from continuing his wood processing business on his property. In McDonnell v. Falco, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0350831 (October 13, 1999, Gormley, J.) rev'd, 66 Conn.App. 508, 784 A.2d 1051 (2001), the court, Gormley, J. held that Falco's business activity constituted an impermissible non farm use of his residentially zoned property. In McDonnell v. Falco, 66 Conn.App. 508, 784 A.2d 1051 (2001), the appellate court reversed the trial court's decision granting the plaintiff, Lawrence McDonnell, an injunction against Falco on the grounds that the plaintiff failed to prove special damages warranting an injunction. Chanaca then brought another action against Falco, but the town had subsequently amended their zoning regulations which now permitted his use of his property. In Chanaca v. Falco, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0404677 (August 5, 2004, Rush, J.) the court denied a temporary injunction citing the amendment to the Easton zoning regulations. In Chanaca v. Easton, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0405605 the plaintiff sought money damages against the planning and zoning commission and the town of Easton for failing to properly enforce the zoning laws. This action was stricken on the grounds of governmental immunity on January 7, 2004 by the court, Doherty, J. A motion for judgment without trial was granted by the court, Owens, J. on February 11, 2004.
All other plaintiffs including Josephine Chanaca withdrew from the action.
"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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003).
The defendant's motion to dismiss states that it is based on a lack of subject matter jurisdiction. The motion states, however, that the "plaintiffs' motion should be denied since they are unable to satisfy the necessary requirements for a bill of discovery to be granted." In support of their motion the defendants argue that: (1) the plaintiffs failed to appeal the planning and zoning board's decision; (2) the previous lawsuits provided the plaintiffs with ample opportunity for discovery; (3) the items sought through the bill of discovery are matters of public record; and (4) the plaintiffs are unable to satisfy the necessary requirements for a bill of discovery to be granted. In reply the plaintiffs argue that: (1) the defendants' arguments are misplaced in the context of an equitable pure bill of discovery; (2) the proper vehicle for the defendants' arguments should be a motion to strike, not a motion to dismiss; and (3) exhaustion does not apply since the plaintiffs are not challenging the regulation.
The proper vehicle for the defendants to address the issue of whether the plaintiff is unable to satisfy the necessary requirements for a bill of discovery is not a motion to dismiss, but rather a motion to strike. Therefore, the defendants' use of a motion to dismiss on the grounds of failing to satisfy the necessary requirements for a bill of discovery is misplaced.
I THE CHALLENGE OF A BILL OF DISCOVERY'S LEGAL SUFFICIENCY UNDER A MOTION TO DISMISS
The defendants state that the court lacks subject matter jurisdiction because the plaintiff has failed to "satisfy the necessary requirements for a bill of discovery . . ." The plaintiffs argue that the proper vehicle to challenge the sufficiency of their pleading is a motion to strike, not a motion to dismiss. "A motion to dismiss does not test the sufficiency of a cause of action and should not be granted on other than jurisdictional grounds . . . A motion to dismiss is not a proper vehicle for an attack on the sufficiency of a pleading . . . Here, it was used to perform, in effect, the function of a [motion to strike] . . . This was improper, and on this ground . . . the court should [deny] the motion." (Citations omitted; internal quotation marks omitted.) Egri v. Foisie, 83 Conn.App. 243, 248, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Emphasis in original.) Id., 247.
"[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike . . ." (Citation Omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). In this instance the defense has selected the wrong motion. In essence what [it] says is that the plaintiff has not stated a cause of action. Of no little significance is the fact that the granting of a motion to dismiss terminates the case at that point with the exception of perhaps an appeal. A motion to strike, if successful, eliminates or corrects the questioned paragraphs or counts of the complaint, and the plaintiff may plead over. That critical distinction implicates a fundamental policy consideration of this state. Connecticut law repeatedly has expressed the policy preference of providing trials on the merits of disputes whenever possible, which provides litigants with their day in court. Greenbaum v. Izzo, Superior Court, judicial district of Waterbury, Docket No. CV 03 0181200 (March 1, 2005, Moraghan, J.T.R.).
For the foregoing reasons the defendants' motion to dismiss for failing to properly plead a bill of discovery complaint is denied.
II THE EXHAUSTION CLAIM
The defendants claim that the court lacks subject matter jurisdiction because the plaintiffs have failed to exhaust their administrative remedies by not appealing either the amendment to the zoning regulations or the issuance of Falco's special permit by the zoning board of appeals. They argue that the goal of the present action is to circumvent the proper statutory procedure provided in General Statutes § 8.8(b) in order to challenge the decision of the planning and zoning commission. The plaintiffs argue that the purpose of their bill of discovery complaint is to gather information in order to prove a conspiracy among the Falcos and various town officials to deprive the plaintiffs of the use and enjoyment of their property by not enforcing land use regulations. The plaintiffs, therefore, argue that such a claim is not the type of issue that an administrative appeal is designed to test.
General Statutes § 8-8(b) provides that: "any person aggrieved by any decision of a board . . . may take an appeal to the superior court . . . The appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes."
"[B]ecause the exhaustion doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff['s] claim." (Internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d. 725 (2003). "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
The plaintiffs allege that they are seeking to gather evidence in furtherance of a possible claim sounding, inter alia, in civil conspiracy. "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 . . . [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.) Filippi v. Sullivan, supra, 273 Conn. 8. The plaintiffs argue that civil conspiracy is not a proper charge to be brought before a local zoning commission. Section 9.4.1 of the Easton zoning regulations illustrates the power and authority of the zoning board of appeals. These powers do not include the power to decide a civil action sounding in conspiracy. That power is properly vested in the Superior Court as a court of general jurisdiction, and may not be properly addressed by a zoning board of appeals. The exhaustion doctrine, therefore, does not apply to the plaintiff's potential cause of action. "[T]he two part rationale for the exhaustion doctrine is: (1) to effectuate the legislative intent that the issue in question be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment . . . and (2) to relieve courts of the burden of prematurely deciding questions that may be resolved satisfactorily through the administrative process." (Emphasis added; internal quotation marks omitted.) Johnson v. Statewide Grievance Committee, 248 Conn. 87, 96, 726 A.2d 1154 (1999). The plaintiff's potential cause of action is not seeking to challenge a zoning regulation, instead, the plaintiffs are trying to construct a case based upon the alleged illegal actions of the defendants. Therefore, the administrative process will not satisfactorily resolve the issue the plaintiffs seek to prove.
Section 9.4.1 of the Easton zoning regulations states that: "the Board shall have the following powers and duties:
A. To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by any official charged with the enforcement of these Regulations.
B. To hear and decide all matters upon which it is required, to pass under any provision of these regulations.
C. To determine and vary the application of these Regulations in harmony with the general purpose and intent of these regulations and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the District in which it is situated, a literal enforcement of these regulations would result in exceptional hardship, so that substantial justice will be done and the public safety and welfare secured."
"Our Superior Court is a constitutional court of general jurisdiction." Olympus Healthcare Group, Inc. v. Muller, 88 Conn.App. 296, 301, 870 A.2d 1091 (2005).
It is also important to note that we are concerned with an equitable bill of discovery. "The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought . . . As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery . . . Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court's discretion." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 680-81, 804 A.2d 823 (2002).
In the present action the plaintiffs, through a bill of discovery, petition the court to allow them to gather information before instituting a claim based on civil conspiracy among various officials of the town of Easton. Such an order is within this court's equitable jurisdiction, and proper when considering the nature of the potential claim. Therefore, the defendants' motion to dismiss for lack of subject matter jurisdiction for failing to exhaust administrative remedies is denied.
For the foregoing reasons the defendants' motion to dismiss is denied as the plaintiffs' bill of discovery is within this court's equitable jurisdiction, and, further, the defendants' argument that the plaintiff is "unable to satisfy the necessary requirements" for a bill of discovery is more properly addressed in a motion to strike.
SKOLNICK, J.