Opinion
KNLCV176028794S
11-09-2017
Janet Foisie v. Robert Foisie
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Timothy D. Bates, J.
Facts
This action, initiated by the plaintiff, Janet Foisie, against the defendant, Robert Foisie, arises from the defendant's alleged fraudulent concealment of financial assets during the plaintiff and defendant's 2011 divorce proceedings. The original complaint, filed by the plaintiff on January 3, 2017, consists of five counts: fraud, breach of fiduciary duty, breach of contract, fraudulent transfer pursuant to General Statutes § 52-552e, and common-law fraudulent transfer. On February 14, 2017, the defendant filed a motion to dismiss all counts of the plaintiff's complaint pursuant to the prior pending action doctrine and for lack of personal jurisdiction. The defendant filed a memorandum in support of its motion to dismiss. On February 27, 2017, the plaintiff filed a memorandum in opposition to the defendant's motion to dismiss. Subsequently, the plaintiff moved to file an amended complaint on March 7, 2017, and the court granted this motion on April 24, 2017. The amended complaint, which is the operative complaint, contains the five counts which were in the original complaint, as well as an additional count sounding in negligent misrepresentation. On May 4, 2017, the defendant filed an amended memorandum in support of his motion to dismiss, and the plaintiff filed a memorandum in opposition on May 5, 2017. The matter was argued before the court on May 5, 2017.
At oral argument on May 5, 2017, the defendant moved for the first time to dismiss the plaintiff's amended complaint for lack of subject matter jurisdiction. Subsequently, the defendant filed a motion to dismiss (#153) for lack of subject matter jurisdiction on May 11, 2017 together with a memorandum in support of his motion to dismiss (#154). The plaintiff filed a memorandum in opposition (#157) to the motion to dismiss on June 15, 2017. On June 16, 2017, the defendant filed a reply memorandum (#160).
The court denied the defendant's motion to dismiss for lack of personal jurisdiction by a memorandum of decision dated June 12, 2017 (#129.50) [64 Conn. L. Rptr. 627, ]. On June 20, 2017, the court ordered that the defendant's motion to dismiss (#153) based on lack of subject matter jurisdiction be marked off until there has been a ruling in the companion family court case, unless there is good cause shown to reclaim the motion. See Order #153.01. Additionally, on June 20, 2017, the court granted the plaintiff's motion for disclosure of assets (#109) in connection with the prejudgment remedy also granted by the court on that day. See Order #158.01.
On July 20, 2017, the plaintiff filed a motion for contempt (#163), pursuant to Practice Book 1-13A et seq. against the defendant, Robert Foisie, for his failure to comply with the court's order granting the plaintiff's motion for disclosure of assets. The defendant did not file an objection to the plaintiff's motion for contempt (#163). The plaintiff's motion for contempt was argued before the court on August 7, 2017. During argument, the defendant orally objected to the plaintiff's motion for contempt on the grounds that he has provided a disclosure of all assets within the United States, along with accompanying releases, and that disclosure of assets outside the United States is not at issue in this case. Furthermore, the defendant argued that there is a motion to dismiss (#153) challenging the court's subject matter jurisdiction pending before this court, and, therefore, the court must address the jurisdictional challenge before an order of contempt is entered.
Practice Book § 1-13A provides in relevant part: " (a) any person or court officer misbehaving or disobeying any order of a judicial authority in the course of any judicial proceeding may be adjudicated in contempt and appropriately punished."
Analysis
I
Disclosure of Assets and Attachment of Assets
" A court orders . . . for disclosure of assets are fundamentally related to, and dependent upon, other prejudgment remedies such as attachments or garnishments: there can be no § 52-278n(a) order for disclosure of assets unless a prejudgment remedy--without specifics such as attachment or garnishment--has been granted." St. Germain v. Ross, Superior Court, judicial district of New London, Docket No. CV-09-5010223-S (July 24, 2014, Cole-Chu, J.) (58 Conn. L. Rptr. 605, ). In that case, the court stated that it " perceives no basis in logic to find that the legislature intended to treat orders for disclosure of assets to satisfy prejudgment remedies differently from the orders of prejudgment remedies themselves for purposes of appeal." Id.
An appeal of an order granting a prejudgment remedy must be filed within seven days of the rendering of the order from which the appeal is taken. General Statutes 52-278l(b). Notably, in the present case, the defendant has not filed an appeal of the court's order granting prejudgment remedy and disclosure of assets to secure the plaintiff's claims against the defendant. However, the defendant has filed a motion to dismiss (#153) based on lack of subject matter jurisdiction which motion, he contends, stays consideration of all other motions until that motion is decided. Consequently, the court has to address the effect of the automatic stay on the motion for contempt, before addressing that motion.
II
Motion for Contempt When a Jurisdictional Challenge is Pending
A motion to dismiss is the proper procedural device to raise a claim of lack of subject matter jurisdiction. Practice Book § 10-30. " Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings . . . [A] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . [W]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Hamilton v. United Services Automobile Assn., 115 Conn.App. 774, 780, 974 A.2d 774, cert. denied, 293 Conn. 924, 980 A.2d 910 (2009).
" [O]nce the question of lack of [subject matter] jurisdiction is raised, it must be disposed of no matter in what form it is presented." (Internal quotation marks omitted.) Branford v. Monaco, 48 Conn.App. 216, 219 n.4, 709 A.2d 582, cert. denied, 245 Conn. 903, 719 A.2d 900 (1998). " Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . 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 . . ." (Internal quotation marks omitted.) Bingham v. Dep't of Pub. Works, 286 Conn. 698, 701, 945 A.2d 927 (2008). " [P]ractice Book § 10-33 states: " Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." " Whenever a claim of lack of jurisdiction is brought to the court's attention, it must be resolved before the court can proceed." (Citation omitted.) Bank of New York v. Bell, 120 Conn.App. 837, 843, 993 A.2d 1022, cert. dismissed, 298 Conn. 917 4 A.3d 1225 (2010).
Our Supreme Court has held that a jurisdictional challenge based on compliance with General Statutes § 52-278j should be addressed before ruling on a motion for contempt. See Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982). In that case, the plaintiff filed a motion for contempt against the defendant, alleging that the defendants " violated and disobeyed the Order for Prejudgment Remedy in that [the defendants] refused to allow a duly authorized sheriff to enter the premises" where a piano was wrongfully detained by the defendants. Id., 296. The defendants moved to dismiss the prejudgment remedy on the ground that more than ninety days from the issuance of the replevy order had passed without service of the writ, summons, and complaint, and, thus, the court lacked jurisdiction over the claim. Id., 297. The trial court did not address the defendants' jurisdictional challenges raised by the motion to dismiss, but nevertheless concluded, " the defendants may be held in contempt for violation of the prejudgment remedy order of this court." (Internal quotation marks omitted.) Id. The Supreme Court, concluding that the trial court erred in failing to decide the jurisdictional claim raised by the motion to dismiss, explained, " [w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction . . ." (Citations omitted.) Baldwin Piano & Organ Co. v. Blake, supra, 186 Conn. 297.
General Statutes § 52-278j(a) provides: " If an application for a prejudgment remedy is granted but the plaintiff, within ninety days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court on its own motion or on the motion of any interested party may dismiss the prejudgment remedy."
Although Baldwin Piano & Organ Co. v. Blake, supra, involves a jurisdictional challenge based on plaintiff's failure to comply with § 52-278j et seq., which is not a basis for the defendant's motion to dismiss in the present case, Connecticut case law is clear that any challenge to subject matter jurisdiction should be resolved before the court can take any further steps in the case as any movement would be an exercise of jurisdiction. See Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). Consequently, as the defendant has moved to dismiss the plaintiff's amended complaint for lack of subject matter jurisdiction, the court is obligated to construe the complaint in the manner most favorable to the plaintiff and to rule upon the defendant's motion to dismiss for lack of subject matter jurisdiction before considering the plaintiff's motion for contempt. Although it could reasonably be construed that the court denied the defendant's oral motion to dismiss for lack of subject matter jurisdiction on May 5, 2015, the court marked the defendant's motion to dismiss for lack of subject matter jurisdiction off and indicated that the matter could not be reclaimed until after the ruling in the corresponding family case. See Order #153.01. The June 20, 2017 order further provided, " [h]owever, if there is good cause shown to reclaim the motion, the motion can be reclaimed . . ." See Order #153.01. The family court ruled on the defendant's motion to dismiss in the corresponding family case on August 31, 2017 [65 Conn. L. Rptr. 144, ], and the defendant reclaimed its motion to dismiss filed in this court on September 19, 2017. Accordingly, because there is a pending motion to dismiss challenging the court's subject matter jurisdiction, the motion to dismiss should be addressed before the court rules on the plaintiff's motion for contempt.
In response to the defendant's argument on May 5, 2015, the court stated, " I'm going to rule against your motion just on the basis that I am not trying the divorce proceeding or re-trying the divorce proceeding. This is in Norwich at this point and so I don't think I have the authority to grant your motion . . . Your client could have raised that claim during the proceeding. He didn't do that. He apparently agreed that for purposes of the proceeding it was to be entered here in Connecticut. You're going to . . . have some work to do . . . with Judge Diana on going forward with that. I have my doubts . . ." Foisie v. Foisie, Superior Court, judicial district of New London, Docket No. KNL-CV-17-6028794-S (Transcript, May 5, 2015).
Conclusion
For the foregoing reasons, the defendant's motion to dismiss based on lack of subject matter jurisdiction must be addressed before the court can rule on the plaintiff's motion for contempt.