MERINDA J. SEMPEY
September 15, 2017
to recover damages for, inter alia, the plaintiff's
alleged wrongful termination, and for other relief, brought
to the Superior Court in the judicial district of Fairfield,
where the court, Hon. Richard P. Gilardi, judge trial
referee, granted the defendant's motion to strike;
thereafter, the court granted the defendant's second
motion to strike; subsequently, the court granted the
defendant's motion to dismiss and rendered a judgment of
dismissal, from which the plaintiff appealed to this court.
Reversed in part; further proceedings.
Laurence V. Parnoff, with whom, on the brief, was Laurence V.
Parnoff, Jr., for the appellant (plaintiff).
E. Theriault, with whom, on the brief, was Beverly W.
Garofalo, for the appellee (defendant).
DiPentima, C. J., and Lavine and Pellegrino, Js.
DIPENTIMA, C. J.
plaintiff, Merinda J. Sempey, appeals from the judgment of
the trial court dismissing her case against the defendant,
Stamford Hospital. On appeal, the plaintiff claims that the
court erred by (1) granting the defendant's motion to
dismiss count one of the amended substitute complaint, and
(2) dismissing the matter in its entirety when the defendant
had moved to dismiss only count one. Although we disagree
that the court erred in granting the motion to dismiss count
one of the amended substitute complaint, we agree that the
court erred in dismissing counts two and three. Accordingly,
we reverse the judgment of the trial court as to counts two
and three of the amended substitute complaint and remand the
case for further proceedings; we affirm the judgment in all
following facts and procedural history are relevant to our
consideration of this matter. The plaintiff was a nurse
employed at will by the defendant from November 9, 1990, to
September 30, 2013. The defendant terminated the
plaintiff's employment for allegedly violating patient
privacy rules outlined in its employee manual.
to General Statutes § 46a-82 et seq., the plaintiff
brought a claim before the Commission on Human Rights and
Opportunities (commission) which, on August 25, 2014, issued
a release of jurisdiction pursuant to General Statutes §
46a-100 et seq. That release required the plaintiff to
commence an action alleging discrimination under the
Connecticut Fair Employment Practices Act (act), General
Statutes § 46a-51 et seq., in the Superior Court within
ninety days. Nine days later, on September 3, 2014, the
plaintiff commenced a timely action against the
defendant, but did not allege a claim of
discrimination in violation of the act. Instead, the
plaintiff alleged (1) wrongful discharge in violation of
public policy, (2) negligent infliction of emotional distress
and (3) violations of the Connecticut Unfair Trade Practices
Act (CUTPA), General Statutes § 42-110a et seq.
November 26, 2014, the defendant moved to strike all three
counts of the original complaint. The court granted that
motion over the plaintiff's opposition on August 6, 2015.
Thereafter, on August 20, 2015, the plaintiff filed a
substitute complaint, which she later amended on September
18, 2015 (amended substitute complaint). In the amended
substitute complaint, the plaintiff alleged three counts:
race discrimination (count one), a tortious conduct claim,
specifically, wrongful discharge involving defamation and
breach of an implied employment contract causing the
negligent infliction of emotional distress (count two), and
violations of CUTPA predicated upon the first two counts
September 21, 2015, the defendant moved to strike all three
counts of the amended substitute complaint and, on the same
day, filed a separate motion to dismiss count one for lack of
subject matter jurisdiction. The plaintiff opposed both
motions. Following argument, the court summarily granted both
motions on January 6, 2016, and dismissed the case. On
January 12, 2016, the plaintiff requested memoranda of
decision, which the court issued on April 28, 2016. In those
memoranda, which track one another closely in their legal
conclusions, the court determined that (1) it lacked subject
matter jurisdiction over the race discrimination claim, (2)
the termination of an at-will employee did not constitute a
violation of public policy or negligent infliction of
emotional distress and (3) an employment relationship does
not implicate trade or commerce as required by CUTPA. The
memoranda reflect that the court granted both motions as to
all three counts and rendered judgment for the defendant
accordingly. On May 17, 2016, the plaintiff filed her appeal
from the dismissal of the amended substitute
appeal, the plaintiff claims that the court erred in
dismissing the case in two ways. The plaintiff argues that
the court erred by (1) considering the defendant's motion
to dismiss while the defendant's second motion to strike
was pending and before the time to file a substitute
complaint had passed and (2) dismissing the matter in its
entirety even though the defendant had moved to dismiss only
count one. The defendant counters that (1) a motion to
dismiss for lack of subject matter jurisdiction may be filed
and resolved at any time, (2) the court has broad discretion
to manage cases, including entering judgment upon a question
of law, and (3) the error, if any, was harmless. We conclude
that the court properly dismissed count one of the amended
substitute complaint but erred in dismissing the remaining
plaintiff first claims that the court erred in considering,
and granting, the defendant's motion to dismiss after the
defendant had filed the second motion to strike and before
the fifteen day period for filing a substitute complaint had
expired. Specifically, the plaintiff contends that
(1) by filing its second motion to strike the amended
substitute complaint, the defendant had to wait until the
plaintiff was able to replead to file a motion to dismiss,
and (2) the court had subject matter jurisdiction over count
one of the amended substitute complaint. We disagree that the
court erred in dismissing count one.
plaintiff argues that by filing the second motion to strike,
the defendant had to wait until the plaintiff was able to
replead to file a motion to dismiss. This contention is
Book § 10-33 provides that ‘‘[a]ny 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.'' (Emphasis added.) Indeed,
‘‘[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
. . . . The requirement of subject matter jurisdiction
cannot be waived by any party and can be raised at any
stage in the proceedings.'' (Emphasis added;
internal quotation marks omitted.) Fairfield Merrittview
Ltd. Partnership v. Norwalk, 320 Conn. 535,
548, 133 A.3d 140 (2016). ‘‘It is axiomatic that
once the issue of subject matter jurisdiction is raised, it
must be immediately acted upon by the court. Statewide
Grievance Committee v. Rozbicki, 211 Conn. 232,
245, 558 A.2d 986 (1989); Cahill v. Board of
Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). . .
. [A]s soon as the jurisdiction of the court to decide an
issue is called into question, all other action in the case
must come to a halt . . . .'' Gurliacci v.
Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991).
the defendant moved to dismiss count one of the amended
substitute complaint for lack of subject matter jurisdiction.
In particular, the defendant argued that the court lacked
jurisdiction over the subject matter of count one because the
plaintiff failed to bring her claim of race discrimination
within ninety days of the commission's release of
jurisdiction pursuant to § 46a-101. It is
indisputable that the plaintiff's original complaint did
not allege race discrimination in violation of the act, but
that the amended and amended substitute complaints, which
were filed outside the ninety day time limit, did.