Opinion
No. CV 07-5013797 S
February 24, 2009
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS/MOTION TO STRIKE (#114)
On June 6, 2008, the defendants, Jeffrey Burzin and Child and Adult Orthodontics, filed a motion to dismiss and to strike (#114) the complaint along with an accompanying memorandum of law "on the grounds that this Court is without jurisdiction." Herman Vaneck filed an objection to the defendants' motion on October 27, 2008, in which he argues, among other things, that the defendant's motion improperly combines two separate motions in violation of the rules of practice. For reasons more fully set forth herein, this court grants the motion to dismiss the First, Second and Third counts; and denies the motion to strike the Eighth count because the plaintiff has sufficiently alleged his claim under the Connecticut Unfair Trade Practices Act (CUTPA).
By way of background, on September 5, 2007, the plaintiff, Herman Vaneck, commenced this action by service of process on the defendants, Jeffery Burzin and Child and Adult Orthodontics. The plaintiff asserts multiple claims on behalf of his minor son, Frederik Vaneck, and one claim on his own behalf. On April 25, 2008, the plaintiff, acting pursuant to a court order, filed a second amended complaint. The eleven-count second amended complaint, although inartfully pleaded, alleges: medical malpractice (First, Second, and Third, Counts); fraud/unjust enrichment (Fourth Count); infliction of emotional distress (Sixth Count); negligent failure to return medical records (Seventh Count); a CUTPA violation (Eighth Count); a RICO violation (Tenth Count); bad faith (Eleventh Count); and breach of the covenant of good faith and fair dealing (Twelfth Count). At oral argument the plaintiff abandoned his Tenth Count.
During short calendar, the court raised, sua sponte, the issue that the plaintiff had filed a pro se appearance, both on his own behalf and on behalf of his minor son. The defendants had neither raised nor briefed the issue.
The plaintiff argues that the First Count asserts an Implied Breach of Contract claim. For reasons which are more fully explained in this decision, this court rejects this argument.
The plaintiff argues that the Second Count asserts a Recklessness claim. For reasons which are more fully explained in this decision, this court rejects this argument.
The plaintiff argues that the Third Count asserts a claim for Battery. For reasons which are more fully explained in this decision, this court rejects this argument.
The defendants seek dismissal of the medical negligence claims in the complaint because the plaintiff has failed to attach a written opinion of a similar health care provider as required by General Statutes § 52-190a. In addition, the defendants move to strike the "additional claims of malfeasance" on the grounds that they are legally insufficient. In response, the plaintiff filed an objection to the defendants' motion on October 27, 2008, in which he argues that the defendant's motion improperly combines two separate motions in violation of the rules of practice. Furthermore, Vaneck contends that he is not required to attach a written opinion under General Statutes § 52-190a, because he has not alleged malpractice. He also argues that his other causes of action are legally sufficient.
At the outset, the court notes that despite its absence from the rules of practice, a combination motion to dismiss and to strike, such as the one before the court, has repeatedly been allowed in Connecticut. See Thomas v. West Haven, 249 Conn. 385, 390, 734 A.2d 535 (1999); Wilcox v. Webster Ins., Superior Court, judicial district of New Haven, Docket No. CV 07 5010093S (March 26, 2008, Robinson, J.); Payne v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 06 5007521S (May 18, 2007, Cosgrove, J.); Henderson v. Mazzocca, Superior Court, judicial district of New Haven, Docket No. CV 03 0186193S (March 18, 2004, Frazzini, J.). Thus, this court will entertain the defendant's arguments.
I. Motion to Dismiss
"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.) 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 a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "The issue of standing implicates subject matter jurisdiction and is therefore [also] a basis for granting a motion to dismiss." Id., 544. "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007). Finally, "standing . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996).
A.
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Absence of Good Faith Certificate
The defendants argue that the court should dismiss this action because the plaintiff failed to file a Good Faith Certificate in accordance with the requirements of General Statutes § 52-190a. The plaintiff counters by arguing that none of the allegations in the complaint sound in medical negligence. A review of the plaintiff's arguments and allegations persuades this court that at least three of the counts in the complaint, the First Count, the Second Count and the Third Count, assert court of subject matter jurisdiction."Section 52-190a(a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make `a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant . . .' In order to show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating that `such reasonable injury gave rise to a good faith belief that grounds exist for an action against each named defendant . . .' General Statutes (Rev. To 2005) § 52-190a(a), as amended by P.A. 05-275, § 2 . . . Subsection (c), which was added by P.A. 05-275, § 2, provides that `[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action . . ." (Emphasis added.) Rios v. CCMC Corp., 106 Conn.App. 810, 815-17, 943 A.2d 544 (2008).
Notwithstanding plaintiff's arguments that he is not making any claims of medical negligence, the substance of his allegations, along with his arguments clearly establish that the gravamen of the plaintiff's claims is that the defendant breached his professional duties to the minor child. Therefore, in order for the court to have jurisdiction over the medical negligence claims, the plaintiff was required to file a Good Faith certificate. Further, the cases relied upon by the plaintiff, Trimel v. Lawrence Memorial Hospital Rehabilitation Ctr., 61 Conn.App. 353, 764 A.2d 203 appeal dismissed 258 Conn. 711, 784 A.2d 889 (2001); and Williams v. National Railroads, 16 F.Sup.2d 178 (U.S.D.C., Nevas, J.) are both inapplicable to the instant matter.
In Trimel, the appellate court recognized that ordinary negligence claims, even if asserted against health care providers, did not require the filing of a Good Faith Certificate. The plaintiff in Trimel was injured while moving from the wheel chair. Although describing it as a "close call," the trial court classified the claim as "simple negligence" rather than medical negligence. In Williams, Federal District court judge Nevas declined to construe a claim that a lab had inaccurately analyzed the plaintiff's urine sample to give rise to a medical negligence claim because the plaintiff had gone to the lab at the instruction and insistence of his employer.
In Boone v. William Backus Hospital, 272 Conn. 551, 864 A.2d 1 (2005), the Connecticut Supreme Court rejected with the plaintiff's argument that the defendant's actions in refusing to treat or re-admit the plaintiff's four-year-old son to the emergency room after he had prescribed him penicillin, were so egregious that an ordinary person would find them to be negligent and reckless without expert testimony. Similarly, this court rejects the plaintiff's argument that the termination of the doctor-patient relationship does not implicate medical negligence issues in this case.
B. Non-Medical Negligence Claims
The plaintiff asserts a number of counts which allege causes of action other than medical negligence. But, before turning to the merits of the defendant's arguments regarding those counts, this court considers the issue of the plaintiff's pro se appearance. As was noted earlier, Herman Vaneck commenced this action as next friend on behalf of his minor son, Frederik. There is only one claim that Herman Vaneck brings on his own behalf. Therefore, this court finds that Herman Vaneck is attempting, essentially, to represent his minor son. Because the minor child, Frederik Vaneck, has not yet reached the age of majority, his father has standing to act as his next friend, and in that representative capacity to invoke the jurisdiction of this court on his son's behalf. Lowe v. Shelton, 83 Conn.App. 750, 755, 851 A.2d 1183 (2004). supra, 83 Conn.App. 755. However, Herman Vaneck cannot litigate pro se on his child's behalf. As a non-attorney, Herman Vaneck is not authorized to commence this action without the appearance of an attorney. "[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's case . . . Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state in his own cause . . . The authorization to appear pro se is limited to representing one's own cause, and does not permit individuals to appear pro se in a representative capacity." (Citations omitted; emphasis in original; internal quotation marks omitted.) Lowe v. Shelton, supra, 83 Conn.App. 756. Thus, the appearance of Herman Vaneck on behalf of his son is improper.
The plaintiff's pro se appearance is not properly filed on behalf of his son. However, the defendants' motion to dismiss is not the proper vehicle to attack it. "`The proper manner by which to challenge [an] improper appearance is to file a motion for default for failure to appear . . .' R.R. Donnelley Sons, Co. d/b/a v. Grey Castle Press, Inc., Superior Court, judicial district of Litchfield, Docket No. 0059244 (June 18, 1992, Pickett, J.) [6 Conn. L. Rptr. 578] (Denying plaintiff's motion to strike individual pro se improper appearance on behalf of defendant corporation); Embec Engineering, Inc. v Administrator, Superior Court, judicial district of Ansonia-Milford, Docket No. 90 024168 (February 21, 1991, Fuller, J.) [3 Conn. L. Rptr. 280] (granting defendant's motion to strike pro se appearance on behalf of plaintiff, a corporation, where prior judge had denied defendant's motion for default for failure to appear and stated that the proper motion was a motion to strike the appearance). See also, Triton Assoc. v. Six New Corporation, 14 Conn.App. 172, 175 (1988) (holding that trial court properly defaulted the defendant for failure to appear, where pro se appearance had been filed on behalf of the defendant, a corporation.)." SNET Info. Serv. v. Photopros Studio, LLC, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 076001104 (March 19, 2008, Bellis, J.).
While this court concludes that the appropriate vehicle for attacking an improper pro se appearance is a motion for default for failure to appear, "trial courts have routinely entertained motions to strike improper appearances." E.G. Kuiken Bros. Co., Inc. v. Coastal Building, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. 040084114 (March 12, 2004, Bear, J.) [36 Conn. L. 668] (Granting plaintiff's motion to strike non-lawyer's appearance on behalf of defendant limited liability company); Valiant Ins. Co. v Nurse Network, LLC, Superior Court, judicial district of Hartford-New Britain, Docket No. 98 0578083 (September 25, 1998, Hennessey, J.) [22 Conn. L. Rptr. 685] (granting plaintiff's motion to strike non-lawyer's appearance on behalf of defendant limited liability company). SNET Info Serv. v. Photopros Studio, LLC, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 076001104 (March 19, 2008, Bellis, J.) [45 Conn. L. Rptr. 209]. The defendants have neither presented a motion to strike the appearance nor a motion for default for failure to appear.
II. Motion to Strike
The defendants move to strike the counts two, seven, eight, nine, ten and twelve of the plaintiff's second amended and revised complaint on the ground that each count is legally insufficient. In contrast to a motion to dismiss, "[t]he purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
A. Counts on Behalf of Minor Son
As noted earlier, the court dismisses the Second Count because the plaintiff failed to file a Good Faith Certificate. Many of the defendants' arguments regarding the Seventh, Ninth and Eleventh counts are meritorious. However, this court will defer ruling on the motion to strike those counts until the parties have an opportunity to address the court's finding that the plaintiff has improperly filed a pro se appearance on behalf of his minor son.
B. CUTPA Claim of Herman Vaneck
The defendant contends that count eight, the CUTPA claim which plaintiff Herman Vaneck brings on his own behalf, is legally insufficient because it is essentially a medical negligence claim. The plaintiff counters that this claim implicates "the business aspects of the defendants."
"[A]lthough physicians and other health care providers are subject to CUTPA, they may be liable only for unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of the practice of medicine . . . The practice of medicine may give rise to a CUTPA claim only when the actions at issue are chiefly concerned with entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the . . . defendant . . ."[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel." (Citations omitted; emphasis in original; internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 808-09, 826 A.2d 1066 (2003).
As long as the actions involved implicate the health care provider's entrepreneurial aspects rather than medical care, a CUTPA claim may be brought. Count eight of the complaint incorporates paragraph fourteen of count four, which provides: "Defendant has failed utterly to provide an accounting of how he calculates the worth of his professional services." Although count eight is not the model of clarity, when read in a light most favorable to the plaintiff, the essence of Herman Vaneck's CUTPA claim challenges the defendant's billing practice, which involves the "entrepreneurial or business aspect" of the defendants' practice. Whether the plaintiff is able to ultimately support his CUTPA claim, it is sufficiently pled to defeat the defendants' motion to strike.
"[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." (Internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 274 Conn. 563, 569 n. 5, 877 A.2d 761 (2005).
In conclusion, the court grants the defendants' motion to dismiss the First, Second, and Third Count of the complaint. Further, the court denies the defendants' motion to strike the Eight Count; and defers ruling on the defendants' motion to strike the remaining counts, pending the resolution of the issue of the plaintiff's improper pro se appearance on behalf of his minor son.
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