Date: January 19, 2017
from Superior Court, judicial district of New Haven at
Meriden, Fischer, J. [motion to open the default; motion to
reargue; motion for articulation; motion to dismiss; motion
to reargue; judgment; motion for a new trial]; Cronan, J.
[motion for waiver of fees]
Bennett, self-represented, the appellant (defendant).
Jeremiah J. O'Connor, for the appellee (plaintiff).
Alvord, Mullins and Norcott, Js.
this wrongful death action, the self-represented defendant,
Erick Bennett,  appeals from the judgment of the trial
court rendered in favor of the plaintiff, Lubecca Johnson,
administratrix of the estate of Willie Brown, Jr. On appeal,
the defendant claims that the court improperly (1) denied his
motion to dismiss for lack of subject matter jurisdiction,
denied his motion to set aside a default for failure to
plead, and (3) denied his motion for a new trial. We affirm
the judgment of the trial court.
following facts and procedural history are relevant to our
consideration of the defendant's claims on appeal. The
plaintiff commenced this action against the defendant,
Raffy's Cafe´ I, LLC, doing business as Raffy's
Cafe´ (Raffy's Cafe´), and Rafael Robles on
July 8, 2010. In her complaint, the plaintiff alleged that
the defendant fatally stabbed Willie Brown, Jr. during an
altercation at Raffy's Cafe´ in Meriden on July 10,
2009. The first two counts of the four count complaint were
directed at Raffy's Cafe´ and its proprietor,
Robles. The first count sounded in dram shop liability, and
the second sounded in common-law recklessness.
last two counts of the complaint were directed at the
defendant. The third count sought recovery on the theory that
the defendant's intentional conduct wrongfully caused
Brown's death. The fourth count alleged that the
defendant's negligence wrongfully caused Brown's
August 30, 2010, the defendant filed an appearance,
representing himself. The defendant also had been arrested
and charged with murder as a result of the stabbing incident.
Consequently, this civil matter and the defendant's
criminal case were occurring simultaneously. However, the
criminal matter concluded on August 26, 2011, when the trial
court rendered a judgment of conviction and sentenced the
defendant to fifty years of incarceration in accordance with
the jury's guilty verdict. At no point during the
duration of the criminal proceedings did the defendant file a
responsive pleading in this civil matter.
after the criminal matter concluded, the defendant neglected
to file any responsive pleading to the plaintiff's
complaint. Accordingly, on October 13, 2011, nearly two
months after the conclusion of the criminal case, the
plaintiff filed a motion for default for failure to plead. On
October 20, 2011, the clerk granted that motion.
years later, on November 21, 2014, the plaintiff filed a
certificate of closed pleadings and requested a hearing in
damages. In the three year period between the entering of the
default and the closing of the pleadings, the defendant
neither filed a responsive pleading nor sought to set aside
the default. However, the defen- dant filed his first motion
to dismiss during that period, on May 7, 2014. The plaintiff
objected to the defendant's first motion to dismiss on
June 4, 2014, and the court sustained the objection on June
23, 2014. The defendant has not challenged the court's
ruling with respect to the first motion to dismiss.
December 8, 2014, after the plaintiff already had filed a
certificate of closed pleadings, the defendant filed a motion
to set aside the default. The court denied that motion on
December 22, 2014.
on December 26, 2014, the defendant filed a second motion to
dismiss. In that motion, he argued that the court lacked
subject matter jurisdiction. On February 5, 2015, the
defendant, who was incarcerated, filed an application for a
writ of habeas corpus ad testificandum seeking
permission to attend court for a hearing on this motion. The
court granted the application. Thereafter, on February 9,
2015, the defendant attended the hearing on the motion.
Following the hearing, on April 6, 2015, the court issued a
memorandum of decision denying the motion. The defendant has
challenged the court's denial of his second motion to
dismiss in this appeal.
April 27, 2015, the court helda hearing in damages. As with
the hearing on his second motion to dismiss, the defendant
was incarcerated at the time of the hearing in damages.
However, unlike the hearing on his second motion to dismiss,
the defendant did not file an application for a writ of
habeas corpus ad testificandum. Consequently, the defendant
did not appear at the hearing in damages. As a result of the
hearing, the court rendered judgment in favor of the
plaintiff, awarding $9217.74 in economic damages and $1, 292,
200 in noneconomic damages.
15, 2015, the defendant filed a motion for a new trial, to
which the plaintiff objected on June 23, 2015. The court
sustained the plaintiff's objection on July 7, 2015. This
TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
defendant claims that the trial court erred in denying his
motion to dismiss for lack of subject matter jurisdiction.
Specifically, the defendant argues that the court improperly
rejected the following five attacks on the court's
subject matter jurisdiction: (1) the plaintiff's probate
certificate authorizing her to bring this lawsuit as
administratrix was invalid because it lacked the valid raised
seal of the Probate Court; (2) the probate certificate itself
did not authorize the plaintiff to bring this suit; (3) the
defendant was entitled to ‘‘sovereign
immunity'' from suit; (4) principles of double
jeopardy barred this suit; and (5) by granting summary
judgment for the codefendants, Raffy's Cafe´ and
Robles, the court also was required to dismiss the counts
against the defendant. The plaintiff responds that none of
these grounds deprived the court of subject matter
jurisdiction. We agree with the plaintiff.
first set forth our standard of review. ‘‘Our
standard of review of a trial court's findings of fact
and conclusions of law in connection with a motion to dismiss
is well settled. A finding of fact will not be disturbed
unless it is clearly erroneous. . . . [If] the legal
conclusions of the court are challenged, we must determine
whether they are legally and logically correct and whether
they find support in the facts . . . . Thus, our review of
the trial court's ultimate legal conclusion and resulting
[denial] of the motion to dismiss will be de novo.''
(Internal quotation marks omitted.) Property Asset
Management, Inc. v. Lazarte, 163 Conn.App. 737, 746, 138
A.3d 290 (2016).
first jurisdictional defect alleged by the defendant is that
the plaintiff's probate certificate ‘‘lacks
the court of probate seal impressed on the certificate, as
required by the certificate.'' We conclude that this
claim lacks merit. The trial court found, after examining the
probate certificate, that the certificate in fact contained
the proper probate seal. The defendant has presented nothing
to show that the trial court's finding, based on its
review of the probate certificate, was clearly erroneous.
defendant's second alleged jurisdictional defect is that
the plaintiff's probate certificate, which states that
the ‘‘fiduciary has no power to buy, sell, or
withdraw assets of the estate, '' prohibits the
plaintiff from bringing this suit. However, the trial court
found that the probate certificate expressly authorizes the
plaintiff to bring this suit because it provides that
‘‘[t]he fiduciary may . . . make claims on behalf
of the estate.'' Moreover, the court also concluded
that ‘‘the plaintiff's civil action is an
exercise of one of the express powers granted to the
fiduciary by General Statutes § 45a-234 (18).''
See General Statutes § 45a-234 (18) (administratrix of
estate has authority to ‘‘compromise, adjust,
arbitrate, sue on or defend, abandon, or otherwise deal with
and settle claims in favor of or against . . . estate or
trust as [she] shall deem advisable''). After
reviewing the record, we conclude that the court's
determination that the plaintiff had the authority to bring
this suit is legally correct and factually supported.
defendant's third attack on the trial court's subject
matter jurisdiction is that he was immune from suit by virtue
of ‘‘sovereign immunity.'' Specifically,
the thrust of the defendant's claim is that he is a
‘‘sovereign in [his] own realm'' because
he is a ‘‘noncorporate human being.''
Consequently, according to the defendant, this status as
‘‘a sovereign'' means that he is not
subject to the jurisdiction of our courts, which are
‘‘arms'' of ‘‘the Commercial
Corporate State of Connecticut.'' We agree with the
trial court that the defendant does not meet the criteria
necessary to claim sovereign immunity.
fact that the state is not named as a defendant does not
conclusively establish that the action is not within the
principle which prohibits actions against the sovereign
without its consent. . . . The vital test is to be found in
the essential nature and effect of the proceeding. . . .
[There are] four criteria [used in] determin[ing] whether an
action is in effect, one against the state and cannot be
maintained without its consent: (1) a state official has been
sued; (2) the suit concerns some matter in which that
official represents the state; (3) the state is the real
party against whom relief is sought; and (4) the judgment,
though nominally against the official, will operate to
control the activities of the state or subject it to
liability.'' (Citation omitted; internal quotation
marks omitted.) Miller v. Egan, 265 Conn. 301, 308,
828 A.2d 549 (2003).
review of the record leads us to conclude that the
defendant's claim is without merit because he failed to
present any factual or legal support demonstrating (1) that
he is a state official, (2) that this suit concerns a matter
in which he represents the state, (3) that the state is the
real party, and (4) that the judgment will operate to control
the activities of the state or subject it to liability.
Simply put, this suit is an action that was brought against a
private person in his individual capacity for monetary
damages arising out of private conduct. ...