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Sempey v. Stamford Hospital

Court of Appeals of Connecticut

April 3, 2018

MERINDA J. SEMPEY
v.
STAMFORD HOSPITAL

          Argued September 15, 2017

         Procedural History

         Action 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).

          Justin E. Theriault, with whom, on the brief, was Beverly W. Garofalo, for the appellee (defendant).

          DiPentima, C. J., and Lavine and Pellegrino, Js.

          OPINION

          DIPENTIMA, C. J.

         The 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 other respects.

         The 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.

         Pursuant 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.

         On 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 (count three).

         On 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 complaint.[1]

         On 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 two counts.

         I

         The 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.[2] 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.

         A

         The 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 without merit.

         Practice 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).

         Here, 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.[3] 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. ...


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