Opinion
No. CV00 37 71 91 S
January 30, 2004
AMENDED MEMORANDUM OF DECISION RE MOTION TO FILE AMENDED COMPLAINT, MOTION TO DISMISS AND MOTION TO OPEN JUDGMENT
In this indemnification action the plaintiff seeks to amend his complaint to include reference to legislation enacted during the pendency of this case. The defendant filed a timely objection to the motion, raising a variety of argument including (a) the court lacks subject matter jurisdiction; (b) the litigation is barred by the applicable statute of limitations; (c) the case has been closed and cannot be reopened and (d) amendment is not available by motion. The defendant also filed a motion to dismiss.
The motion to dismiss contains arguments similar to those in the defendant's objection to the motion to amend.
I. Procedural History
The plaintiff, Alex Martinez, was acquitted of crimes allegedly committed during the course of his duties as a state police trooper. While defending these charges the plaintiff incurred significant legal fees. The plaintiff requested indemnification from the police department pursuant to General Statutes § 53-39a. The police department refused to indemnify him, and as a result, the plaintiff commenced this action in the Superior Court against the defendant, State of Connecticut, Department of Public Works, Division of State Police.
Connecticut General Statutes § 53-39a provides:
Whenever, in any prosecution of an officer of the Division of State Police within the Department of Public Safety, or a member of the Office of State Capitol Police or any person appointed under section 29-18 as a special policeman for the State Capitol building and grounds, the Legislative Office Building and parking garage and related structures and facilities, and other areas under the supervision and control of the Joint Committee on Legislative Management, or a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred.
The defendant filed a Motion to Dismiss the plaintiff's complaint, relying upon the argument that the State of Connecticut is protected by the doctrine of sovereign immunity and therefore the court lacked subject matter jurisdiction. By memorandum dated December 22, 2000 the trial court, Rush, J., denied the state's requested relief, ruling that a right to indemnification was automatic upon a finding of not guilty.
The defendant appealed from the trial court's decision. The appeal originally was argued on September 24, 2001 before a panel of five members of Supreme Court. That panel affirmed the trial court's decision. Martinez v. Dept. of Public Safety, 258 Conn. 680, 784 A.2d 347 (2001) ( Martinez I). After reconsideration en banc the Connecticut Supreme Court reversed that decision. Martinez v. Department of Public Safety, 263 Conn. 74, 818 A.2d 758 (2003) ( Martinez II).
Pursuant to Connecticut Practice Book § 61-11, on January 2, 2001 the defendant filed a motion for stay of the trial court proceedings.
Connecticut Practice Book § 61-11 provides in relevant part:
(a) Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order appealed from shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. If the case goes to judgment on appeal, any stay thereafter shall be in accordance with Section 71-6 (motions for reconsideration), Section 84-3 (petitions for certification by the Connecticut Supreme Court), and Section 71-7 (petitions for certiorari by the United States Supreme Court).
Generally the denial of a motion to dismiss is an interlocutory ruling, not a final judgment for purposes of appeal. However, "the denial of a motion to dismiss based on a colorable claim of sovereign immunity is an immediately appealable final judgment because the order or action so concludes the rights of the parties that further proceedings cannot affect them." (Internal citations omitted; internal quotations marks omitted.) Martinez v. Department of Public Safety, 263 Conn. 74, 88 n. 5, 818 A.2d 758 (2003).
In Martinez II, the Connecticut Supreme Court ruled that the indemnification statute at issue waived immunity from liability but did not waive immunity from suit. Martinez II, 263 Conn. at 80. In light of the limited available legislative history the Martinez II court reasoned "Given our obligation to construe § 53-39a strictly and to effect the least change in our law regarding sovereign immunity, we conclude that the legislature did not intend to waive immunity from suit in § 53-39a, and the plaintiff therefore is barred from bringing suit against the defendant to enforce the indemnity provision of the statute." The Supreme Court ordered:
The Martinez II court noted that "The legislative history of § 53-39a pertinent to the claim raised by the plaintiff does not itself provide us with any insight as to the intention of the legislature in enacting the statute. The legislative history is limited to the public act's appearance on the consent calendar." Martinez II, 263 Conn. at 77 n. 4; see also page 83 n. 7.
The trial court's decision denying the defendant's motion to dismiss is reversed and the case is remanded to that court with direction to grant the motion to dismiss.
Martinez II, 263 Conn. at 88.
The Martinez II court rendered its decision on April 3, 2003. On June 3, 2003 the Connecticut legislature enacted Connecticut Public Act § 03-97. That statute provides:
Section 53-39a of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):
Whenever, in any prosecution of an officer of the Division of State Police within the Department of Public Safety, or a member of the Office of State Capitol Police or any person appointed under section 29-18 as a special policeman for the State Capitol building and grounds, the Legislative Office Building and parking garage and related structures and facilities, and other areas under the supervision and control of the Joint Committee on Legislative Management, or a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred. Such officer may bring an action in the Superior Court again at such employing governmental unit to enforce the provisions of this section.
In response to Public Act § 03-97 the plaintiff filed the instant motion for leave to file an amended complaint. The defendant has objected.
II. Applicable Law
The court must decide whether this plaintiff has the ability to amend a complaint to reflect legislative changes. That decision controls the other motions pending before this court.
A litigant may file an amended complaint at any time with the consent of the judicial authority. Connecticut Practice Book § 10-60. "A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof." Wilburn v. Mount Sinai Medical Center, 3 Conn. App. 284, 287, 487 A.2d 568 (1985). While our courts should be liberal in permitting amendment, there are limitations. "Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002). "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." Wilburn v. Mount Sinai Medical Center, 3 Conn. App. at 287.
Connecticut Practice Book § 10-60 provides in relevant part:
(a) [A] party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
(1) By order of judicial authority; or
(2) By written consent of the adverse party; or
(3) By filing a request for leave to file such amendment . . .
The defendant cannot suggest that there has been an undue delay between the original and the proposed amended complaint. The plaintiff filed the amended complaint within two days of the legislative change. Nor can the defendant argue that the plaintiff was negligent. The defendant does not contend that the amendment is either unfair or unjust. Instead the defendant reasons that the plaintiff cannot amend his complaint because there is no pending matter.
A. Because the Connecticut Supreme Court Mandate Ordering Dismissal of the Underlying Action Was Not Self-Executing, the File Remains Open and Plaintiff Can Amend His Original ComplaintThere is no doubt that the Connecticut Supreme Court issued an order directing the trial court to dismiss the plaintiff's action. This court may not review the decision of a higher court. Briggs v. Pennsylvania Railroad, 334 U.S. 304 (1948). Furthermore,
It is axiomatic that on remand for further proceedings after decision by an appellate court, the trial court must proceed with the mandate and the law of the case as established on appeal. A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.
Planned Parenthood of Southeast Pennsylvania v. Casey, 822 F. Sup. 227, 233 (E.D.Pa. 1993).
"But a mandate is controlling only as to matters within its compass . . ." (Internal citations omitted; internal quotations marks omitted.) Sprague v. Ticonic National Bank, 307 U.S. 161, 168 (1939). "If complete finality cannot be accomplished, if something remains to be done by the court below, the appellate court will ordinarily so indicate, usually by a remand with directions, or a mandate which the trial court must follow. Consequently, the scope of the finality of an appellate decision depends on what the court intends to be final, and this is determined by what the court's decision says." Interstate Power v. Nobles County Board of Commissioners, 617 N.W.2d 566, 584 (Minn. 2000) (Gilbert, dissenting). The primary caveat is that the new law cannot contravene a constitutional provision or deprive a litigant of due process of law. Petty v. Clark, 192 P.2d 589, 594 (Utah 1948). Thus, although ordinarily, a lower court must carry out a mandate from an appellate court without reexamination, deviation from a mandate is permissible in cases involving "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Wilson v. Great American Industries, Inc., 770 F. Sup. 85, 89 (N.D.N.Y. 1991) citing Doe v. New York City Department of Social Services, 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864 (1983).
In the present case, after an appellate court vacated a decision and remanded with further directions, there has been a superceding legislative enactment. A trial court can apply new legislation even after an appellate determination and remand Banco Nacional de Cuba v. Farr, 383 F.2d 66 (2nd Cir. 1967).
In United States v. Ekwunoh, 888 F. Sup. 369 (E.D.N.Y. 1994), the court discussed role of a trial court when faced with conflicting appellate court and legislative mandates. There the court noted:
The mandate rule requires a district court on remand to follow the decision of the court of appeals. When an intervening statute conflicts with the mandate of an appellate court, the statute prevails . . . [T]he Constitution would preclude application of the Supreme Court's mandate, since the law of the case is . . . only a doctrine of judicial administration based on the practice of the courts. A federal statute, on the other hand, is an assertion of its constitutional power by Congress and is entitled to respect as the supreme law of the land
See also United States v. Buffington, 879 F. Sup. 1220 (N.D.Ga. 1995).
The above rule reflects a respect for both legislative and judicial authority as well as a concern for separation of powers. Consequently, just as appellate courts must apply the law at it existed at the time of the appellate decision; Interstate Power v. Nobles County Board of Commissioners, 617 N.W.2d 566, 574 (Minn. 2000); "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. School Board of Richmond, 416 U.S. 696, 711 (1974). Thus courts should not hesitate to deviate from a mandate if there has been a relevant supervening change. See Factors Etc., Inc. v. Pro Arts, Inc., 541 F. Sup. 231 (S.D.N.Y 1982) and the cases cited therein. Clearly Public Act § 03-97 constituted a subsequent change.
The mandate rule is "a specific application of the law of the case doctrine and, as such, is a discretion-guiding rule subject to an occasional exception in the interests of justice . . . In other words, because the law of the case doctrine is a rule of policy and practice, rather than a jurisdictional limitation, it may tolerate a modicum of residual flexibility in exceptional circumstances." (Internal citations omitted; internal quotations marks omitted.) United States v. Bell, 988 F.2d 247 n. 12 (1st Cir. 1993).
The procedural history in the present case is analogous to that in Bhinder v. Sun Co., 263 Conn. 358, 819 A.2d 822 (2003). The issue in Bhinder was whether to allow retroactive application of legislation that precluded apportionment. Rejecting a separation of powers argument, the Connecticut Supreme Court held, "We presume that, in enacting a statute, the legislature intended a change in existing law . . . This presumption, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case. An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act. Furthermore, an amendment that is intended to clarify the intent of an earlier act necessarily has retroactive effect." (Internal citations omitted; internal quotation marks omitted.) Bhinder, 263 Conn. at 368-69.
As in Bhinder, the legislative history of P.A. § 03-97 clearly reveals the legislature's intention to clarify the meaning of the statute, a reaction to the decision in Martinez II. During the legislative debate on the bill in the House of Representatives, Representative Michael P. Lawlor stated: "This amendment seeks to clarify apparently something that was confusing to our State Supreme Court . . . This amendment makes it clear that the State Police officers may bring an action in Superior Court against an employing governmental unit to enforce the provisions of the existing law. So, in other words, State Police would be able to be compensated for the cost of their legal representation assuming they are exonerated." 46 H.R.Proc., Pt. 8, 2003 Sess., p. 2003. During the debate Representative Belden asked "[I]s it your understanding that the situation that has happened in the past, that this would, in fact, allow the individuals involved to go to court to obtain their legal fees?" 46 H.R.Proc., Pt. 8, 2003 Sess., p. 2006. In response, Representative Lawlor first indicated "in the future a State Trooper who is accused of committing a crime, who was, in fact, exonerated, would be able to [sic] reimbursed, in effect, for his legal representation just as he would if he was a defendant in a civil suit" 46 H.R.Proc., Pt. 8, 2003 Sess., p. 2007. When pressed further about the Martinez situation, Representative Lawlor responded "I believe that individual would be able to seek compensation." 46 H.R.Proc., Pt. 2, 2003 Sess., p. 2008.
The procedural history in this matter also resembles that in Banco Nacional de Cuba v. Parr, 383 F.2d 66 (2nd Cir. 1967). The Second Circuit rejected the argument that the act did not apply to the case at bar, noting that the explicit language of the statute together with its legislative history evinced intent to apply the clarification to the pending action.
It is evident that Public Act § 03-97, a reaction to a judicial interpretation that the legislature deemed inappropriate, was intended to clarify Connecticut General Statutes § 53-39a. Furthermore, as in Bhinder, "the present case had not yet come to a final judgment. In this regard, a jury had not been impaneled, no evidence had been offered, and the case was far from its conclusion." Bhinder, 263 Conn. at 372. Here the defendants did not have a vested right in either the prior legislative phraseology or in the pending litigation. Bhinder, 263 Conn. at 373.
B. Despite the Supreme Court Mandate, There Has Never Been a Dismissal for Lack of Subject Matter Jurisdiction; Thus the Amendment Is Proper
The defendant suggests that the underlying action was dismissed by the Connecticut Supreme Court due to lack of subject matter jurisdiction and, thus, an amendment is precluded. The defendant omits discussion of the subsequent legislation. It further ignores the fact that "In certain classes of cases a final judgment may be followed by a further judgment." Antman v. Connecticut Light Power Co. 117 Conn. 230, 237, 167 A.2d 715 (1933). The Supreme Court order was not self-executing. "The trial court had yet to enter an order and complete a judgment file . . . The record of the court in which the judgment was rendered . . . was the only proper evidence of the judgment, in the absence of evidence that such record was lost or destroyed . . . The judgment-file is the evidence of the judgment; the judgment itself is rendered when the judge officially announces his decision either orally in open court, or by memorandum filed with the clerk . . ." Brown v. Cray, 88 Conn. 141, 146, 89 A.2d 1123 (1914).
In Norton v. Shore Line Electric Railway Co., 84 Conn. 24, 32, 78 A.2d 587 (1911), the Connecticut Supreme Court noted "The better practice is to enter of record all judgments or orders of dismissal or erasure. Such a record will be of assistance when the disposition of the case shall become a subsequent matter of judicial investigation. In addition it will preserve among the records of the judgments of the court, where it belongs, this judgment of the court, equal in its conclusiveness to any."
In light of the subsequent legislative history, entering that final order and completing a judgment file would not be proper. Allowing the plaintiff to proceed is appropriate. "It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." (Internal quotation marks omitted) Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978).
C. The Amendment Is Not Barred by the Statute of Limitations
The defendant argues that plaintiff's proposed amendment is precluded because it has been more than three years since the plaintiff was exonerated of all criminal charges. Thus, argues the defendant, the action is barred by the applicable statute of limitations.
The defendant ignores the procedural history in this matter. The plaintiff initiated this action on September 5, 2000, well within the applicable limitation period. The defendant filed its motion to dismiss within a month. Litigation concerning that motion has stayed all proceedings.
The defendant's suggestion that the plaintiff is somehow at fault for the delay in these proceedings is disingenuous. The defendant, not the plaintiff requested a stay of proceedings while the State appealed the trial court's denial of the motion to dismiss. The defendant cannot now complain that it received the relief requested.
Having properly initiated this action, the plaintiff could "amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same." (Internal citations omitted.) Wagner v. Clark Equipment Co., Inc., 259 Conn. 114, 129, 788 A.2d 83 (2002). The amendment relates back to the date of the original complaint. Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001). "Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Citation omitted; internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995).
The requested amendment, filed in a timely fashion, relates to the original complaint and therefore is appropriate.
IV. Conclusion
The plaintiff is allowed to amend his original complaint to include a reference to Connecticut Public Act § 03-97. The defendant's objection is overruled. For the reasons set forth above, the defendant's Motion to Dismiss is denied.
In light of the reasoning set forth in this memorandum, the plaintiff's motion to open is marked off.
DEWEY, J.