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Miller v. Board of Education

Court of Appeals of Connecticut

March 12, 2019

JOSEPHINE MILLER
v.
BOARD OFEDUCATION OF THE CITY OF BRIDGEPORT ET AL.

          Argued December 10, 2018

         Procedural History

         Action to recover damages for, inter alia, quantum meruit, and for other relief, brought to the Superior Court in the judicial district of Danbury, where the court, Shaban, J., granted the plaintiff's motion to cite in the City of Bridgeport as a defendant; thereafter, the court, Truglia, J., granted the defendants' motion to dismiss and rendered judgment thereon; subsequently, the court granted the defendants' motion to correct and issued a corrected memorandum of decision, and the plaintiff appealed to this court.

          Josephine S. Miller, self-represented, the appellant (plaintiff).

          John P. Bohannon, deputy city attorney, for the appellees (defendants).

          Elgo, Bright and Moll, Js.

          OPINION

          PER CURIAM.

         The plaintiff, Josephine Miller, appeals from the judgment rendered by the trial court following its granting of the motion to dismiss filed by the defendants, the Board of Education of the City of Bridgeport (board), Mark Anastasi, and the City of Bridgeport (city).[1] On appeal, the plaintiff claims that the trial court erred in dismissing the action as untimely because it was saved by the accidental failure of suit statute, General Statutes § 52-592 (a), [2] and, therefore, should have been allowed to proceed. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. On June 23, 2010, the plaintiff, representing herself, commenced an action in the Superior Court seeking payment from the board for legal services she allegedly provided in 2010 to Andrew Cimmino, a defendant in an action brought in federal court; see Lyddy v. Cimmino, United States District Court, Docket No. 3:06CV01420 (CFD) (D. Conn.); whom the plaintiff alleged was entitled to a defense and indemnification by the board pursuant to General Statutes § 7-101a (a).[3] See Miller v. Board of Education, Superior Court, judicial district of Fairfield, Docket No. CV-10-6011406-S (2010 action). The claims raised by the plaintiff in the 2010 action sounded in quantum meruit and unjust enrichment. On July 10, 2012, the court dismissed the 2010 action on the basis of the plaintiff's failure to appear at trial. On July 24, 2012, the plaintiff filed a timely motion for reconsideration of the judgment of dismissal. On November 19, 2012, the trial court denied the plaintiff's motion for reconsideration. On December 10, 2012, the plaintiff appealed from the judgment of dismissal to this court, which affirmed the judgment on October 1, 2013. See Miller v. Board of Education, 146 Conn.App. 901, 75 A.3d 98 (2013) (per curiam).

         Meanwhile, on August 6, 2012, while the plaintiff's motion for reconsideration in the 2010 action was pending, the plaintiff, representing herself, commenced another action in the Superior Court. See Miller v. Board of Education, Superior Court, judicial district of Danbury, Docket No. CV-12-6010257-S (2012 action). In the 2012 action, the plaintiff asserted race discrimination claims against the board and Anastasi, the city attorney, in his official and individual capacities, pursuant to 42 U.S.C. § 1981. The plaintiff did not raise, however, a claim of quantum meruit or unjust enrichment in the 2012 action and did not purport to file the 2012 action pursuant to § 52-592. On August 31, 2012, the board filed a notice of removal of the 2012 action to the United States District Court for the District of Connecticut. On July 30, 2014, the federal District Court ordered, among other things, that the 2012 action be dismissed with prejudice as a sanction pursuant to rule 11 of the Federal Rules of Civil Procedure for the plaintiff's knowingly making false allegations in the complaint. See Miller v. Board of Education, United States District Court, Docket No. 3:12CV01287 (JAM) (D. Conn. July 30, 2014). On September 27, 2014, the plaintiff filed a notice of appeal to the United States Court of Appeals for the Second Circuit. On December 10, 2014, the Second Circuit issued a mandate dismissing the plaintiff's appeal, effective October 29, 2014.

         On May 6, 2015, the plaintiff commenced the present action against the board and Anastasi in his official and individual capacities, asserting claims sounding in quantum meruit and unjust enrichment. On August 17, 2015, after obtaining the court's permission, the plaintiff filed an amended complaint, which added the city as a defendant. On November 16, 2015, the defendants filed an answer and special defenses. On November 18, 2016, the defendants filed a motion to dismiss asserting, inter alia, that the present action was commenced beyond the one year savings provision of § 52-592 (a). On April 7, 2017, the trial court granted the defendants' motion to dismiss, concluding that (1) the plaintiff could not avail herself of § 52-592 (a) because the dismissal of the 2010 action resulted from the plaintiff's lack of diligence and her failure to appear at trial, and not one of the grounds set forth in the statute to render it a qualifying failed action; and (2) even if the plaintiff could avail herself of § 52-592 (a), the plaintiff had failed to commence the present action within one year after the determination of the 2010 action, which was the original action for purposes of § 52-592 (a).[4] This appeal followed.

         ‘‘We first set forth our standard of review governing motions to dismiss. 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. . . . [W]here 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 [granting] of the motion to dismiss will be de novo. . . . A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.'' (Footnote omitted; internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 606, 806 A.2d 567 (2002).[5]

         On appeal, the plaintiff claims that the trial court erroneously dismissed the present action as untimely. Specifically, she argues: (1) the court improperly concluded that § 52-592 (a) was not available to her based on its finding that the 2010 action was dismissed as a result of her lack of diligence and her failure to appear at trial; and (2) the court improperly concluded that, even if § 52-592 (a) were available to her, she failed to commence the present action within the one year savings period.[6] We conclude that, even if we assume, arguendo, that the plaintiff could avail herself of § 52-592 (a), she failed to commence the present action within the one year savings period.[7]

         Section 52-592 (a) provides in relevant part: ‘‘If any action, commenced within the time limited by law, has failed one or more times to betried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated . . . for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.'' (Emphasis added.) ‘‘[U]nder the provisions of § 52-592 (a) ‘original action' means the first action filed within the time allowed by the applicable statute of limitations.'' Pintavalle v. Valkanos, ...


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