Opinion
No. CV085019866
June 1, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS #109
The defendant filed a motion to dismiss the plaintiff's action arguing that this case should be dismissed because the plaintiff did not substitute the decedent with the administratrix of the decedent's estate within the time period provided by General Statutes § 52-599(b). The plaintiff opposes the motion, claiming that the substitution was made within the required time-frame; and if it was not, there was good cause for the late filing. For reasons more fully set forth, herein, this court grants the motion to dismiss.
The plaintiff, Calogero Marino, commenced this action by service of process against the decedent, Elaine Burgess, on April 15, 2008. In a letter to plaintiff's counsel dated November 6, 2008, defense counsel wrote that "it has recently come to our attention that our client . . . has passed away." The decedent died on October 12, 2008. Plaintiff's counsel replied in a letter dated December 15, 2008, asking defense counsel for a copy of the death certificate. Defense counsel sent the death certificate to plaintiff's counsel on February 4, 2009. Plaintiff's counsel filed an application to have Linda Livieri appointed as the administratrix of the decedent's estate on December 29, 2009. The application was granted by the Probate Court, district of Wallingford (Probate Court), on January 14, 2010. Shortly thereafter, on January 27, 2010, the plaintiff filed a suggestion of death and a motion to substitute the decedent with Livieri. The defendant objected to the Motion to Substitute. The court, Licari, J., granted the plaintiff's motion to substitute on February 9, 2010.
The court will hereinafter refer to defense counsel as the defendant.
On February 2, 2010, the defendant filed a motion to dismiss with an accompanying memorandum of law. The plaintiff objected on February 16, 2010, citing, among other things the fact that the court had granted his motion to substitute. The defendant then filed a motion for articulation or in the alternative reconsideration of the motion to substitute on February 24, 2010, which was granted by the court, Licari, J., on March 8, 2010. The defendant also filed a reply memorandum regarding the motion to dismiss on February 25, 2010. The following day, on February 26, 2010, the plaintiff filed a supplemental memorandum in opposition to the motion to dismiss. The court heard the matter at short calendar on March 1, 2010.
"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). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003), "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
The defendant argues that the court should grant the motion to dismiss because the court cannot exercise subject matter jurisdiction over an action in which one party is a decedent. The defendant claims that the decedent is still a party because the plaintiff failed to substitute her in timely fashion with the administratrix of her estate. The defendant argues that the November 6, 2008 letter marked the start of the one-year time period provided by General Statutes § 52-599(b), which allows a plaintiff to substitute a deceased defendant with the deceased defendant's administrator or executor. The defendant also contends that the plaintiff lacks "good cause" for his failure to substitute the decedent with the administratrix of her estate in timely fashion that would excuse his noncompliance with the statute.
The plaintiff objects to the motion on the ground that the one-year time period provided by § 52-599(b) began when he received the death certificate on February 4, 2009, not when he received the defendant's letter on November 6, 2008. Therefore, according to the plaintiff, his January 27, 2010 motion to substitute the decedent with Livieri was proper. He also argues that, in the event that the motion to substitute is untimely, he has "good cause" to except him from compliance with the statute.
The death of a party does not necessarily terminate an action, if the decedent's estate is duly substituted as the party in interest in a timely fashion. "By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial, but they must be entities which the law recognizes as competent . . . [A] dead person is a nonexistent entity and cannot be a party to a suit." (Citations omitted; internal quotation marks omitted.) Noble v. Corkin, 45 Conn.Sup. 330, 332, 717 A.2d 301 (1998). "Although at common law the death of a sole plaintiff or defendant abated an action . . . by virtue of § 52-599, Connecticut's right of survival statute, a cause of action can survive if a representative of the decedent's estate is substituted for the decedent." (Citation omitted.) Burton v. Browd, 258 Conn. 566, 570-71, 783 A.2d 457 (2001). Section 52-599(b) specifically provides in relevant part: "If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed." Failure to comply with § 52-599, absent good cause, requires the termination of the action. See, e.g. Otero v. Bojka, Superior Court, judicial district of Waterbury, Docket No. CV 02 0170662 (September 5, 2003, Gallagher, J.) ( 35 Conn. L. Rptr. 375, 376). ("Because the plain language of § 52-599(b) requires that the plaintiff move to substitute the administrator in place of the decedent within a year after receiving written notification of the decedent's death, the failure to do so is fatal.")
I.
The defendant argues that the November 6, 2008 letter is sufficient under the statute because the court must read "written notification" in terms of the words' dictionary definitions, per §§ 1-1(a) and 1-2z. The plaintiff counters that the November 6, 2008 letter was not sufficient "written notification." Rather he argues that the notice required under the statute "must be made in some legitimate context or in some verifiable way." He claims that a death certificate or a suggestion of death is required to provide sufficient "written notification." The court agrees with the defendant.
"In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . ." General Statutes § 1-1(a). "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z.
The plaintiff further argues that the court should look to Rule 25(a)(1) of the Federal Rules of Civil Procedure for guidance. Rule 25(a)(1) provides: "If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed." According to the plaintiff, "Connecticut attorneys have historically borrowed from [the rule]." The court has not found, nor has the plaintiff cited to any Connecticut State Court case law supporting this application of Rule 25(a)(1) in interpreting § 52-599. For this reason, the court need not further address this argument.
There is no appellate authority on the issue of what constitutes "written notification" under § 52-599. The Supreme Court has defined notice, though. "The word `notice' may be defined as that which imparts information to the one to be notified." Lo Russo v. Hill, 139 Conn. 554, 557, 95 A.2d 698 (1953). Also, several Superior Courts have addressed the issue of notice under § 52-599. In Johnson v. Clyburn, Superior Court, judicial district of New Haven, Docket No. CV 91 0312070 (December 9, 1994, Hodgson, J.) ( 13 Conn. L. Rptr. 147), the court granted defense counsel's motion to dismiss on the ground that the plaintiff had not timely substituted the deceased defendant with the administrator of his estate under § 52-599. The plaintiff in Johnson received a letter from counsel for the deceased defendant's insurer that read: "It is my understanding that Mr. Clyburn passed away in September of 1992. Therefore, I believe if you want to continue your action you must move to have an Estate opened and apply to the Court for an order substituting the decedent's executor or administrator in place of the decedent. See [ § ]52-599." Id., 148. The court concluded: "This notice was certainly clear, and the plaintiffs have failed to demonstrate that it was inadequate to alert them to the need to move to substitute within a year of receiving it." Id.
Similarly, the court in Solomon v. Pettitt, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 82 0202282 (February 26, 1991, Spear, J.) ( 3 Conn. L. Rptr. 819), granted the defendants' motion to dismiss on the ground that the plaintiff had not timely substituted the decedent with his estate's co-executors under § 52-599. In reaching to its conclusion, the court considered a letter sent by an attorney involved in the plaintiff's action to a co-executor, in which the attorney noted the co-executor's representation of the decedent's estate and informed the co-executor of the plaintiff's action. Plaintiff's counsel received a copy of the letter, and the court determined that the letter put the plaintiff "on written notice of [the decedent's] death" and that she needed "no additional wake up call with respect the [the decedent's] death." Id., 820.
In the instant case, the November 6, 2008 letter documented and imparted the information of the decedent's death to the plaintiff, and the plaintiff has not demonstrated that it was inadequate to alert him to the need to substitute. His argument that the November 6, 2008 letter "may or may not [have been] based upon supposition, hearsay and even conjecture" is therefore unpersuasive.
The plaintiff is correct that a suggestion of death is often used to alert a party of the death of a party. But, this court agrees with Judge Spears who wrote in Solomon that a suggestion of death "is a common ( not required) method of alerting counsel of the death of a party." (Emphasis added.) Solomon v. Pettitt, supra, 3 Conn. L. Rptr. 820. Therefore, this court concludes that the November 6, 2008 letter was sufficient "written notification" under the statute to start the one-year time period in which the plaintiff could move to substitute the decedent with the administratrix of her estate.
II.
The plaintiff argues that even if this court concludes that the filing of the motion to substitute was not timely, the motion to dismiss must still be denied because the plaintiff had "good cause" for the late filing.
The Supreme Court has "held that [ § 52-599] gives the plaintiff an absolute right to have the representative of a deceased defendant cited in within one year after the defendant's death, and thereafter it is within the power of the court to order him cited in if good cause is shown for the delay." (Internal quotation marks omitted.) Worden v. Francis, 170 Conn. 186, 188, 365 A.2d 1205 (1976). "`Good cause' is defined as a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and] [l]egally sufficient ground or reason . . . Thus, the scope of our discretion requires us to review the intent and the reasons given by the plaintiff for not moving to substitute the executor in place of the defendant . . . within the one year period set forth in § 52-599, and to determine if those reasons, particular to this case, amounted to good legal excuse." (Citations omitted; internal quotation marks omitted.) Schoolhouse Corp. v. Wood, 43 Conn.App. 586, 591, 684 A.2d 1191 (1996), cert. denied, 240 Conn. 913, 691 A.2d 1079 (1997). "[T]he trial court is to exercise broad discretion in determining whether good cause exists in a given case." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 155, 698 A.2d 938 (1997).
"A plaintiff's delay in seeking substitution would be excused for good cause if all the parties interested were disabled by sickness, or lived remote from the domicile of the intestate, or had not heard of his death . . . A plaintiff's delay would also be excused when the plaintiff's administrator waited to seek substitution because the defendant's attorney had asked him not to file papers with the court, and had assured him that the debt at issue in the litigation would be paid . . . On the other hand, the Supreme Court affirmed a denial of a motion to substitute when it was apparent on the record that the plaintiff's delay resulted from simple neglect . . . Neglect, indifference, disregard of plainly applicable statutory authority and self-created hardship do not constitute good cause to excuse the delay in filing the motion to substitute in the appropriate court." (Citations omitted; internal quotation marks omitted.) Schoolhouse Corp. v. Wood, supra, 43 Conn.App. 591-92.
The plaintiff in the present case argues that he has "good cause" for his noncompliance with the statute, in the event that his motion to substitute is deemed untimely, because: (1) he waited months before he received the death certificate from the defendant; (2) he believed that the decedent's widower would file the decedent's will with the Probate Court and petition to have himself appointed as executor; and (3) he was hopeful that the case would settle. He also argues that the present case is distinguishable from Worden v. Francis, supra, 170 Conn. 188, in which the Supreme Court held that the plaintiff lacked "good cause" where there was "inordinate delay in the prosecution of [his] case," because this case does not present such "blatant neglect." The court, though sympathetic, is unpersuaded by these arguments.
The plaintiff has not been disabled by sickness; he does not live remotely from the decedent's domicile; and he did not wait to file his motion to substitute at the defendant's request. His counsel concedes in the original memorandum that although he delayed filing the motion to substitute as long as possible, once it became clear that the parties were not going to be able to reach a settlement, he petitioned for Livieri's appointment. The plaintiff does not present substantial reasons amounting in law to a legal excuse. Instead, he presents his strategies in prosecuting the case, including his considerations of such factors as the cost and the time of petitioning for the appointment. These do not constitute good cause as the Appellate Courts have defined it. For the foregoing reasons, the court grants the defendant's motion to dismiss.