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Drabik v. Thomas

Court of Appeals of Connecticut

August 14, 2018


          Argued May 30, 2018

         Procedural History

         Petition for a bill of discovery seeking to depose the named defendant et al., brought to the Superior Court in the judicial district of New London, where the court, Cole-Chu, J., granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          Victoria S. Mueller, for the appellant (plaintiff).

          Andrew L. Houlding, for the appellees (defendants).

          Lavine, Alvord and Keller, Js.


          LAVINE, J.

         The plaintiff, John Drabik, appeals from the judgment of the trial court dismissing his petition for a bill of discovery against the defendants, Elaine Thomas, a deputy tribal historic preservation officer for The Mohegan Tribe of Indians of Connecticut (tribe), James Quinn, the tribal historic preservation officer for the tribe, and the Tribal Council, the governing body of the tribe, on the ground of tribal sovereign immunity. Specifically, the plaintiff claims that the trial court improperly (1) decided that the petition should be dismissed on the ground that tribal sovereign immunity applies to petitions for a bill of discovery, and (2) determined that the defendants are entitled to tribal sovereign immunity. We affirm the judgment of the trial court.

         The following facts, as gleaned from the plaintiff's petition for a bill of discovery and the court's memorandum of decision, and procedural history are relevant to this appeal. The plaintiff owns property in East Lyme that is not part of or adjacent to the reservation of the tribe. AT&T evaluated the plaintiff's property as a potential location for a new cellular communications tower. As part of the application process to the Connecticut Siting Council, the agency responsible for utility facilities' locations, AT&T submitted an electronic message with the proposed site to the Federal Communications Commission, which notified the tribe of the proposal. The tribe responded on or about July 1, 2015.

         The response, written by Thomas, indicated that a site walk conducted on June 10, 2015, identified ‘‘substantial stone groupings'' on the property adjacent to the plaintiff's property. According to the response, the proposed tower would ‘‘impact the view shed'' of these ‘‘cultural stone features'' and could ‘‘possibly cause impact to the overall integrity of the landscape.'' The response concluded that, in the opinion of the Mohegan Tribal Historic Preservation Office, the proposed tower would cause an adverse effect to ‘‘properties of traditional religious and cultural significance to the [tribe].'' After receiving this response from the tribe, AT&T stopped considering the plaintiff's property as a potential site for the tower.

         On multiple occasions, the plaintiff made requests for clarification from Thomas and Quinn about the stone groupings, seeking more information about their location, substance, and historical and cultural significance, but no representative of the tribe responded to any of his repeated requests. On September 23, 2015, the plaintiff filed a petition for a bill of discovery, alleging that he may have a cause of action of intentional interference with a business relationship against the defendants. On October 5, 2015, the defendants filed a motion to dismiss, citing the doctrine of tribal sovereign immunity. The trial court granted the defendants' motion to dismiss the bill of discovery. The plaintiff then filed the present appeal, [1] claiming that the court improperly found that sovereign immunity applied and that sovereign immunity bars a bill of discovery.

         Well established principles of law govern our standard of review. ‘‘[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . . In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court's review is plenary. A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . The trial court's role in considering whether to grant a motion to dismiss is to take the facts to be those alleged . . . including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.'' (Citation omitted; internal quotation marks omitted.) Davidson v. Mohegan Tribal Gaming Authority, 97 Conn.App. 146, 148, 903 A.2d 228, cert. denied, 280 Conn. 941, 912 A.2d 475 (2006), cert. denied, 549 U.S. 1346, 127 S.Ct. 2043, 167 L.Ed.2d 777 (2007).


         We begin with a brief discussion of the bill of discovery in light of the plaintiff's assertion that it should be exempt from tribal sovereign immunity. ‘‘The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought. . . . [B]ecause a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court's discretion. . . .

         ‘‘To sustain the bill, the [plaintiff] must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought. . . .

         ‘‘Discovery is confined to facts material to the plaintiff's cause of action and does not afford an open invitation to delve into the defendant's affairs. . . . A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to his action. . . . A plaintiff should describe with such details as may be reasonably available the material he seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn ...

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