2005 Ct. Sup. 13938-ds, 40 CLR 125
No. CV 04-5000006 SConnecticut Superior Court Judicial District of Waterbury at Waterbury
October 6, 2005
MEMORANDUM OF DECISION
PAUL MATASAVAGE, JUDGE.
The defendant, Abbott Terrace Health Center, has moved to dismiss this action on the ground that the court lacks subject matter jurisdiction. Specifically, the defendant argues that the plaintiff, Anna Zollo, is not competent; and thus, the court does not have jurisdiction to hear this matter. The defendant filed her motion to dismiss on June 24, 2005. On July 5, 2005, the plaintiffs filed a memorandum of law in opposition to the motion, and on September 9, 2005, the defendant filed a reply brief.
The plaintiff initially brought this action on July 9, 2004, claiming personal injuries as a result of the negligence of the defendant’s servants, agents or employees. The plaintiff alleges that she fell and sustained injuries while a patient at the defendant’s nursing home facility.
Since the institution of this lawsuit, counsel have engaged in extensive litigation. In response to the notice of the plaintiff’s deposition, plaintiff’s counsel filed a motion for protective order. In the motion, plaintiff’s counsel opined that “(t)he deposition should not be had because Anna Zollo is ninety-one years old, and her physician has advised her that due to her age and health, a deposition and the stress of a deposition would be detrimental to her health.”
In response to the motion for protective order, the defendant has filed this motion to dismiss for lack of subject matter jurisdiction, and claims that the plaintiff lacks the capacity to initiate legal proceedings on her behalf.
I.
“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.” CT Page 13938-dt (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” Upson v. State, 190 Conn. 622, 624, 461 A.2d 991
(1983).
“[I]n ruling upon whether a complaint survives a motion to dismiss, a court 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.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11
(1999).
“Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Crystal, 251 Conn. 748, 763, 741 A.2d 956 (1999). “[A] claim that [the] court lacks subject matter jurisdiction [may be raised] at any time.” (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396, cert. denied, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998). “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245
(1997). “[P]arties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.” Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). “The trial court . . . [can determine] sua sponte that its subject matter jurisdiction [is] in question . . .” Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 851, 633 A.2d 305 (1993); see als Daley v. Hartford, 215 Conn. 14, 28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 573, 112 L.Ed.2d 525 (1990). (“[T]he question of subject matter jurisdiction . . . can be raised by any of the parties, or by the court sua sponte, at any time.”).
II.
The defendant claims that the matter must be dismissed due to the plaintiff’s incompetency. The defendant’s claim fails for two reasons.
First, there is no evidence before the court which establishes the plaintiff’s lack of competency. The defendant only puts forth the arguments by plaintiff’s counsel that she is ninety-one years old and her physician has advised her that due to her age and health, a deposition and CT Page 13938-du the stress of a deposition would be detrimental to her health. There is no medical evidence before the court which establishes that the plaintiff is incapable of managing her own affairs, see C.G.S. § 45a-644, et seq.[1]
Secondly, the defendant’s reliance on Cottrell v. Connecticut Bank Trust Co., 175 Conn. 257 (1978), is misplaced. Cottrell stands for the proposition that a person who has been adjudged incompetent may only bring a civil suit through a conservator or guardian. In this case, there has been no adjudication by any court that the plaintiff is incompetent and in need of a conservator.
Further, the defendant’s claim is that the defendant is now incompetent. The defendant has not claimed that the plaintiff was incompetent at the time that suit was commenced. As a “general rule, where a person has been adjudged incompetent, and a conservator, guardian, or committee has been appointed for him, he may not institute an action in his own name or by a next friend; any action on his behalf must be commenced by the conservator, guardian, or committee.” (Citations omitted; emphasis added.) Cottrell v. Connecticut Bank Trust Co., supra, 175 Conn. At 262. Since there is no claim that the plaintiff was incompetent at the time that suit was commenced, the court has jurisdiction to entertain it.
The defendant has cited no authority to support the proposition that the court loses subject matter jurisdiction when a party becomes incompetent. In those cases, the longstanding procedure is to substitute a conservator as party plaintiff. Failing that, the court may, in its discretion, appoint a guardian ad litem, pursuant to C.G.S. § 45a-132.[2]
Therefore, for the foregoing reasons, the defendant’s motion to dismiss is denied.
(d) “Incapable of managing his or her affairs” means that a person has a mental, emotional or physical condition resulting from mental illness, mental deficiency, physical illness or disability, chronic use of drugs or alcohol, or confinement, which prevents that person from performing the functions inherent in managing his or her affairs, and the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care or welfare of the CT Page 13938-dv person or those entitled to be supported by that person and that the person is unable to take the necessary steps to obtain or provide funds which are needed for the support, care or welfare of the person or those entitled to be supported by such person. Sec. 45a-650. (Formerly Sec. 45-70d). Hearing. Medical information. Appointment of conservator. Limitation re powers and duties . . .
(d) If the court finds by clear and convincing evidence that the respondent is incapable of managing his or her affairs, the court shall appoint a conservator of his or her estate unless it appears to the court that such affairs are being managed properly without the appointment of a conservator. If the court finds by clear and convincing evidence that the respondent is incapable of caring for himself or herself, the court shall appoint a conservator of his or her person unless it appears to the court that the respondent is being cared for properly without the appointment of a conservator.
CT Page 13938-dw