Opinion
No. CV-03-0482479 S
October 26, 2004
MEMORANDUM OF DECISION
On September 16, 2003, the plaintiff, the University of Connecticut, commenced the present action against the defendant, Patricia Wolf. On October 1, 2003, the plaintiff filed a two-count complaint alleging default on a promissory note and unjust enrichment. This action arises out of the defendant's alleged refusal to pay her outstanding debt owed the plaintiff. On November 27, 1978, the defendant allegedly had signed a promissory note evidencing this outstanding debt.
In count one of the complaint, the plaintiff alleges, that despite demands for payment the defendant has defaulted on her loan in the amount of $7000, plus the additional costs of $2330.81 in interest and $3999.17 for collection costs, or a total amount as of the date of this pleading of $13,329.98. In count two of the complaint, the plaintiff further alleges, that the defendant has been unjustly enriched by having received the benefit of services rendered and neglecting or refusing to pay for these services.
On September 23, 2003, the defendant filed an appearance and on September 24, 2003, filed an answer. In count one of her answer, the defendant alleges that she has made numerous payments to the plaintiff including a Federal Income Tax intercept. The defendant further alleges that the plaintiff, on two separate occasions, has refused to accept checks tendered in the amount of $8000 in satisfaction of her debt. Additionally, the defendant disputes the amount of the debt owed. In count two of her answer, she alleges that the plaintiff has not been unjustly enriched because it has refused payment on those two separate occasions. Furthermore, the defendant alleges that she has made past payments to the plaintiff; and it has failed to credit her for these payments and for a Federal Income Tax intercept.
The defendant is pro se.
The defendant summarily alleges in her answer that there was a Federal Tax intercept which also constituted a payment made to the plaintiff. The defendant, however, has not afforded the court with any other information regarding the intercept.
Ancillary to the court's decision regarding the current motion to dismiss, the defendant has also plead in her answer a special defense of statute of limitations.
Also on September 24, 2003, the defendant filed a "cross complaint" alleging damage to her credit rating, thereby seeking dismissal of the action, monetary damages and equitable relief. On October 9, 2003, the defendant filed an amended counterclaim, alleging in count one, that the plaintiff is in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (2004), and, in count two, that as a result of the plaintiff's actions, she has suffered damage to her credit rating and accordingly seeks dismissal of the action, monetary damages and equitable relief.
The defendant filed what is procedurally called a counterclaim. Hereinafter, reference to the counterclaim will refer to the defendant's "cross complaint."
On November 28, 2003, the plaintiff filed an answer denying both counts of the defendant's amended counterclaim. Subsequently, on January 12, 2004, and pursuant to Practice Book §§ 10-30-31, the plaintiff filed a motion to dismiss the defendant's amended counterclaim on the ground that the court lacks subject matter jurisdiction. The plaintiff has submitted a memorandum of law in which it asserts that the court is without jurisdiction because the defendant's claims are barred by statutory and sovereign immunity. As required by Practice Book § 10-31, the plaintiff filed a memorandum of law in support of its motion to dismiss.
On February 3, 2004, in opposition to the plaintiff's motion to dismiss, the defendant filed a "motion for denial of plaintiff's request for dismissal of cross complaint." The defendant challenges the motion to dismiss on the ground of laches. This matter was heard on the short calendar on August 23, 2004.
The defendant's "motion for denial of plaintiff's request for dismissal of cross complaint" constitutes what is procedurally a memorandum of law in opposition to the plaintiff's motion to dismiss.
The purpose of a motion to dismiss is to, "properly [attack] 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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). The test for a motion to dismiss is "whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). Subject matter jurisdiction, "because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). The court, "[i]n ruling upon whether a complaint survives a motion to dismiss, . . . 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.) Dyous v. Psychiatric Security Review Board, supra, 773.
The burden rests on "the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003). Moreover, "[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 80-81, 818 A.2d 758 (2003).
The plaintiff moves to dismiss the defendant's counterclaim on the ground that the court lacks subject matter jurisdiction based upon its sovereign and statutory immunity. The plaintiff maintains that as an agent of the state, it is immune from suit unless it consents to being sued by appropriate legislation waiving sovereign immunity. In support of this ground, the plaintiff, argues that absent a valid waiver of the state's sovereign immunity, the court does not possess jurisdiction to entertain a suit for monetary damages against the state or a state-owned educational institution. Because the defendant has not presented this claim to the state claims commissioner and no statutory waiver to sovereign immunity authorizes the action, the plaintiff argues that the court lacks subject matter jurisdiction to hear the case.
The Connecticut legislature has established a set procedure for filing claims against the state. To pursue such a claim, the claimant must first present that claim to the office of the claims commissioner of the state of Connecticut before commencing an action against the state. Capers v. Lee, 239 Conn. 265, 684 A.2d 696 (1996). In essence this is a petition seeking permission to proceed with an action against the state in a court of law. Id. All claims against the state for damages are subject to prior authorization from the claims commissioner with a few listed exceptions. The plaintiff asserts that because the defendant's counterclaim does not fall within any of the enumerated exceptions to sovereign immunity and there is no applicable express statutory waiver, the defendant's counterclaim must fail.
General Statutes § 4-141 et seq.
"There shall be a Claims Commissioner who shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for payment of grants in lieu of taxes; and (5) claims for the refund of taxes." General Statutes § 4-142.
The plaintiff also cites to General Statutes § 4-165 in support of its motion to dismiss. This section is not applicable to the claim in the present case because the defendant is not asserting claims against a particular state official in his or her official or individual capacity.
At the short calendar hearing, the defendant countered, that the plaintiff has waived sovereign immunity by initiating this present action, thereby not barring her counterclaim. The merits of the defendant's argument is not that the plaintiff has expressly consented to suit by a statutory waiver or expressly waived sovereign immunity but rather that by voluntarily initiating this action, the plaintiff has impliedly waived its sovereign immunity.
The doctrine of sovereign immunity is well settled. The Connecticut Supreme Court has "long recognized the common-law principle that the state cannot be sued without its consent . . . [The court] also recognize[s] that because the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state . . .
"The absolute bar of actions against the state on the ground of sovereign immunity has been modified by statute and by judicial decisions. Sovereign immunity does not bar suits against state officials [or agents] acting in excess of their statutory authority or pursuant to an unconstitutional statute . . . In addition, the state cannot use sovereign immunity as a defense in an action for declaratory or injunctive relief . . .
"When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. See General Statutes §§ 4-141 through 4-165b. The claims commissioner, if he deems it just and equitable, may sanction suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. General Statutes § 4-160(a). This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 107-08, 856 A.2d 335 (2004).
In the present case, it is undisputed that the plaintiff is an agent of the state. The Connecticut Supreme Court has specifically recognized that, "claims for damages brought against UConn . . . are, in effect, actions against the state as a sovereign and are, therefore barred by the doctrine of sovereign immunity." Fetterman v. University of Connecticut, 192 Conn. 539, 550, 473 A.2d 1176 (1984). Inasmuch as the plaintiff is an agent of the state, it can assert the defense of sovereign immunity and generally, the Superior Court does not have authority to hear claims for monetary damages against the state when the doctrine of sovereign immunity is applicable. See Krozser v. New Haven, 212 Conn. 415, 423, 562 A.2d 1080 (1989), cert denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774 (1990).
Although the doctrine of sovereign immunity is well settled in our jurisprudence there are recognized exceptions. The applicability of the doctrine of sovereign immunity, therefore, must be examined within the context that it arises. In Reilly v. State, 119 Conn. 217, 219, 175 A. 582 (1934), rev'd on other grounds, 194 Conn. 43, 478 A.2d 601 (1984), the State brought an action against the trustee of an estate. The State filed a plea in abatement and to this plea the defendant (plaintiff in error) moved to dismiss. The Connecticut Supreme Court held, "[t]he rule undoubtedly is that the State cannot be made a party defendant to an action without its consent; but if the State itself invokes the jurisdiction of the court to secure affirmative relief, it subjects itself to any proper cross demand involved in the subject-matter of the action." Id. The court further explained that, "[a] fortiori, by bringing an action, the State subjects itself to the procedure established for its final and complete disposition in the courts, by way of appeal or otherwise." Id., 220.
Analogous to the facts of the present case, is State v. Lex Associates, Superior Court, judicial district of Hartford-New Britain at Hartford, Housing Session, Docket No. 4259 (December 4, 1995, DiPentima, J.) ( 15 Conn. L. Rptr. 611, 612), rev'd in part on other grounds, 248 Conn. 612, 730 A.2d 38 (1999), where the State brought an action seeking specific performance of certain provisions of a lease. The defendant, Lex, counterclaimed seeking damages under certain other provisions of the same lease. There the court held that, "in bringing this action the State has consented to the bringing of the counterclaim which arises from the subject matter of the complaint." Id., 612. The court further explained that, "[h]ad there been no action by the State, it is clear that Lex [the defendant] would have had to seek the permission of the Commission of Claims . . . in order to bring an action based on the counterclaim." Id. Similarly in State v. Hartford Accident Indemnity Co., 136 Conn. 157, 70 A.2d 109 (1949), the court emphasized that special authority was unnecessary to proceed with the claim because "if the State itself invokes the jurisdiction of the court to secure affirmative relief, it subjects itself to any proper cross demand involved in the subject matter of the action." (Emphasis added; internal quotation marks omitted.) Id., 160 n. 1.
There is a clear distinction between state action as an initiating litigant and one as an intervening party. When the state as a litigant seeks to affirmatively establish the defendant's liability, sovereign immunity is not a bar to any proper claim arising out of the original action. See Reilly v. State, supra, 119 Conn. 219. "[T]he rationale for allowing counterclaims where the state brings such an action is simple fairness. To allow the state to invoke the jurisdiction of the court to seek to establish that a defendant is liable to it and yet allow it to shield itself from a counterclaim by way of sovereign immunity would be patently unfair." Isaacs v. Ottaviano, 65 Conn.App. 418, 423, 783 A.2d 485 (2001). Moreover, it has been recognized that, "once the state waives its immunity, the procedural statutes and rules of the court apply to the state just as they apply to any other litigant." Id., 422.
This long standing rational has been upheld and established over the years. "[T]he State, by bringing [the action] opened the door to any defense or cross-complaint germane to the matter in controversy . . . A sovereign who asks for equity must do equity." State v. Kilburn, 81 Conn. 9, 12, 69 A. 1028 (1908).
In the present case, the plaintiff, by initiating this action against the defendant, has affirmatively sought to establish the defendant's liability. The plaintiff seeks to hold the defendant liable for defaulting on a signed promissory note and for unjust enrichment. The defendant counterclaims asserting that the plaintiff has violated the Fair Debt Collection Practices Act and has refused to accept and credit her payments. This counterclaim is clearly germane to the original action and arises out of the same subject matter of the original action, the signed promissory note. The current motion before the court, although filed by the defendant, is merely an extension of the case originally initiated by the state. The state by initiating this present action, voluntarily invoked the jurisdiction of the court, thereby subjecting itself to any proper cross demand involved in the subject matter of the action. See Reilly v. State, supra, 119 Conn. 219-20; Winchester v. Cox, 129 Conn. 106, 113, 26 A.2d 592 (1942). The plaintiff, by instituting this action against the defendant has waived its sovereign immunity with regards to the defendant's counterclaim. Reilly v. State, supra, 221.
Moreover, the defendant's failure to abide by the statutory procedure and acquire the claims commissioner's authorization prior to bringing her counterclaim also is not fatal. Once "the state has consented to the bringing of the counterclaim by bringing the suit, the statutory procedure [is] not required." State v. Lex Associates, supra, 15 Conn. L. Rptr. 612, citing State v. Kilburn, supra, 81 Conn. 9. Therefore compliance by the defendant with the statutory procedure in order to attain prior consent was unnecessary.
For the foregoing reasons, the plaintiff's motion to dismiss for lack of subject matter jurisdiction is denied because the defendant's counterclaim is not barred by statutory or sovereign immunity.
Howard Zoarski Judge Trial Referee