Council v. Hein

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Council v. Hein

PRISCILLA COUNCIL v. SKYLAR HEIN ET AL.
(AC 47918)
Cradle, C. J., and Westbrook and Norcott, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment dismissing her personal
injury action brought pursuant to the accidental failure of suit statute (§
52-592 (a)). The plaintiff claimed, inter alia, that the court erred in consider-
ing and granting the defendants’ motion to dismiss because it was not the
proper procedural vehicle to challenge the applicability of § 52-592. Held:

This court concluded that, although the trial court improperly granted the
defendants’ motion to dismiss because it was not the proper procedural
vehicle for challenging the applicability of § 52-592, the plaintiff failed to
offer even remote factual support for her action under § 52-592 and failed
to demonstrate how she was harmed by the court’s error; accordingly, the
form of the judgment was improper.

Argued October 20, 2025—officially released April 21, 2026

Procedural History

Action to recover damages for, inter alia, negligence,
brought to the Superior Court in the judicial district
of Danbury, where the court, Shaban, J., granted the
defendants’ motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this court.
Improper form of judgment; reversed; judgment directed.
Raneil A. Smith, with whom, on the brief, was Frank
A. Denicola, for the appellant (plaintiff).
Philip T. Newbury, Jr., for the appellees (defendants).

Opinion

WESTBROOK, J. The plaintiff, Priscilla Council,
appeals from the judgment of the trial court dismissing
her personal injury action brought against the defen-
dants, Skylar Hein (Skylar) and Jeffrey Hein (Jeffrey),
pursuant to General Statutes § 52-592 (a), the accidental
failure of suit statute.1 The plaintiff claims that the
1
General Statutes § 52-592 (a) provides in relevant part: “If any action,
commenced within the time limited by law, has failed one or more times
to be tried on its merits because of insufficient service or return of the
Council v. Hein

court erred in considering and granting the defendants’
motion to dismiss because it was not the proper proce-
dural vehicle to challenge the applicability of § 52-592
(a). We agree with the plaintiff’s claim but conclude that
she has failed to demonstrate how she was harmed by the
court’s error. We further conclude that the form of the
judgment is improper in that, rather than rendering a
judgment of dismissal, the court should have rendered
judgment in favor of the defendants.
The record reveals the following facts and procedural
history. Following a motor vehicle accident involving the
plaintiff and Skylar on August 10, 2020, the plaintiff
filed a complaint on August 22, 2022, seeking damages
for personal injuries allegedly stemming from Skylar’s
negligence. On September 27, 2022, Skylar issued inter-
rogatories and requests for discovery in response to the
plaintiff’s complaint. The plaintiff failed to respond to
those requests, and Skylar filed a motion for order of
compliance with the requests on December 12, 2022.
On February 6, 2023, the plaintiff filed an objection to
Skylar’s motion for order of compliance. The objection,
however, did not assert that the plaintiff had complied
with the requests. Rather, it requested an additional
sixty days to respond to them. On February 8, 2023, the
court overruled the objection and ordered the plaintiff
to comply with the requests by March 1, 2023.
On March 6, 2023, the court held a hearing to deter-
mine if the plaintiff had complied with the interrogato-
ries and requests for discovery. The plaintiff’s counsel
failed to appear at the hearing despite being duly noticed.
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 by the death of a party or 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, or, if the plaintiff is dead and the
action by law survives, his executor or administrator, may commence a
new action, except as provided in subsection (b) of this section, for the
same cause at any time within one year after the determination of the
original action or after the reversal of the judgment. . . .”
Council v. Hein

On the basis of the representations made by Skylar’s
counsel during the hearing, the court concluded that the
plaintiff had failed to comply with the court’s order of
discovery and subsequently issued a judgment of non-
suit against the plaintiff. The plaintiff never complied
with the discovery order and did not move to open and
set aside the nonsuit.
On January 31, 2024, more than ten months after her
initial action was nonsuited, the plaintiff commenced
a new action seeking damages from the defendants for
the injuries she incurred during the August 10, 2020
motor vehicle accident. The plaintiff brought this action
pursuant to § 52-592 (a). The new complaint, which now
also named Jeffrey as a defendant, was otherwise sub-
stantially identical to the initial complaint.
On April 29, 2024, the defendants filed a motion to
dismiss pursuant to Practice Book § 10-30. The motion
argued in relevant part that the court lacked jurisdic-
tion to review the plaintiff’s claims under the accidental
failure of suit statute because the plaintiff could not
demonstrate, consistent with the requirements of the
accidental failure of suit statute, that her nonsuited
action was the result of mistake, inadvertence, or excus-
able neglect. On June 17, 2024, the plaintiff filed an
objection to the defendants’ motion to dismiss, arguing
in relevant part that a motion for summary judgment is
the proper procedural vehicle to challenge her § 52-592
(a) action and that the motion to dismiss deprived her of
the opportunity to demonstrate that her initial claims
were nonsuited on the basis of any of the grounds set
forth in § 52-592 (a).
On July 1, 2024, the trial court held a hearing on the
motion to dismiss. At the hearing, the defendants’ coun-
sel argued that “the reason for [the] motion to dismiss is
. . . that there is no subject matter jurisdiction because
the plaintiff was not reasonably diligent in bringing the
underlying matter.” The defendants’ counsel also high-
lighted what the defendants saw as a lack of diligence by
the plaintiff during the underlying nonsuited litigation.
Council v. Hein

The plaintiff’s counsel argued, in response, that “[w]hat
should have been brought is either a motion to strike or
motion for summary judgment.” The court later inquired
with the plaintiff’s counsel about the factual basis for the
plaintiff’s § 52-592 (a) action, asking specifically, “Where
was the mistake, inadvertence or excusable neglect in all
this?” The plaintiff’s counsel argued that the conditions
of § 52-592 (a) were satisfied when counsel missed the
March 6, 2023 hearing during the initial litigation. The
plaintiff’s counsel then specified, after being prompted
by the court as to the specific cause of the absence, that
the absence was due to inadvertence. The court then
asked, “But how do I know that?” Counsel responded:
“Because plaintiff’s counsel is here representing that
it was unintentional . . . .”
On July 26, 2024, the court issued a decision granting
the defendants’ motion to dismiss on the ground that
“[t]he plaintiff ha[d] not presented any evidence that
might explain why [Skylar’s] discovery requests were
not complied with, nor provided an excusable reason as
to why she was not present at the March 6, 2023 hear-
ing.” This appeal followed.
In her statement of issues, the plaintiff raises two
claims on appeal. First, she claims that the court erred in
granting the motion to dismiss because it was procedur-
ally improper. Second, she claims that the court abused
its discretion in granting the motion to dismiss. More-
over, in the final paragraph of the plaintiff’s argument,
the plaintiff states that “the trial court committed plain
error when it granted the defendants’ motion to dismiss
due to the plaintiff’s alleged failure to satisfy § 52-592.”
We do not reach the plaintiff’s abuse of discretion or plain
error claims because they were inadequately briefed, and
we consider only whether the trial court erred in decid-
ing the defendants’ motion to dismiss.2 Although we
2
The argument section of the plaintiff’s brief is limited to a discussion
of how “[t]he defendants’ motion to dismiss was procedurally improper.”
The plaintiff provides no analysis regarding the merits of the court’s
determination that the accidental failure of suit statute was inapplicable
under the circumstances presented. It is well settled that “[w]e are not
Council v. Hein

recognize that generally a motion to dismiss is not the
proper procedural vehicle to challenge the applicability
of § 52-592, under the circumstances of the present case,
we conclude that the trial court’s error was harmless.
Before addressing the merits of the plaintiff’s claim,
we set forth the applicable standard of review. “A motion
to dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot
as a matter of law and fact state a cause of action that
should be heard by the court.” (Internal quotation marks
omitted.) Merrill v. NRT New England, Inc., 126 Conn.
App. 314, 318, 12 A.3d 575 (2011), appeal dismissed, 307
Conn. 638, 59 A.3d 171 (2013) (certification improvi-
dently granted). “In ruling upon whether a complaint
survives a motion to dismiss, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing 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.”
(Internal quotation marks omitted.) Mulcahy v. Mossa,
89 Conn. App. 115, 120, 872 A.2d 453, cert. denied,
274 Conn. 917, 879 A.2d 894 (2005). “[O]ur review of
the trial court’s ultimate legal conclusion and resulting
[decision to] grant . . . the motion to dismiss will be de
novo.” (Internal quotation marks omitted.) Columbia
Air Services, Inc. v. Dept. of Transportation, 293 Conn.
342, 347, 977 A.2d 636 (2009). This standard reflects
the principle that motions to dismiss present pure ques-
tions of law that appellate courts are fully equipped to
review independently.
The plaintiff correctly observes that we previously have
held that, generally, a motion to dismiss is not the proper
procedural vehicle for challenging a § 52-592 action. See
Worth v. Commissioner of Transportation, 135 Conn.
obligated to consider issues that are not adequately briefed. . . . Whe[n]
an issue is merely mentioned, but not briefed beyond a bare assertion of
the claim, it is deemed to have been waived.” (Citation omitted; internal
quotation marks omitted.) Connecticut Coalition Against Millstone v.
Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).
Council v. Hein

App. 506, 515 n.16, 43 A.3d 199 (“[A] motion to dismiss
is not the appropriate procedural means to challenge an
action commenced pursuant to the accidental failure
of suit statute. The appropriate challenge is by way of
properly pleaded special defense . . . .” (Citation omit-
ted; internal quotation marks omitted.)), cert. denied,
305 Conn. 919, 47 A.3d 389 (2012); LaBow v. LaBow,
85 Conn. App. 746, 750, 858 A.2d 882 (2004) (“as a
general matter, a motion to dismiss is not the proper
procedural instrument for challenging the applicability
of § 52-592 (a)”), cert. denied, 273 Conn. 906, 868 A.2d
747 (2005). Although this court has upheld on appeal a
trial court’s granting of a motion to dismiss raising the
inapplicability of § 52-592, it has done so only where the
plaintiff has failed to object to the improper motion. See
LaBow v. LaBow, supra, 746 (“the plaintiff’s failure
to object in a timely manner to the use of a motion to
dismiss amounted to a waiver of any challenge she now
asserts”). Here, the defendants improperly challenged
the plaintiff’s action via a motion to dismiss rather than
raising the inapplicability of the accidental failure of
suit statute via a properly pleaded special defense, on
which it could have then moved for summary judgment.
The plaintiff substantively objected to proceeding via a
motion to dismiss at multiple points after the motion
was filed, including in her opposition to the motion and
at the hearing on the motion. Thus, we agree with the
plaintiff that the court improperly granted the defen-
dants’ motion because it was not the proper procedural
vehicle for challenging the applicability of § 52-592.3
Notwithstanding the trial court’s error, however, to
succeed on appeal, the plaintiff must demonstrate that
she was harmed by the trial court’s erroneous granting
of the defendants’ motion to dismiss. See Fort Trumbull
3
Unlike the plaintiffs in LaBow and Worth, the plaintiff in the present
case clearly articulated her objection to the defendants’ use of a motion
to dismiss. First, her memorandum in support of her objection distin-
guished her case from those with nonobjecting plaintiffs, arguing that,
“[h]ere, the plaintiff does object and states that this is more proper for
summary judgment than a motion to dismiss.” The plaintiff’s counsel
then reiterated her objection at the hearing on the motion to dismiss.
Council v. Hein

Conservancy, LLC v. Alves, 262 Conn. 480, 497, 815
A.2d 1188 (2003) (finding that “the trial court improp-
erly determined that it had no subject matter jurisdiction
over the plaintiff’s complaint” but affirming judgment
because “the factual allegations of the complaint were
insufficient to support the plaintiff’s claims for relief”);
see also Mercer v. Rodriquez, 83 Conn. App. 251, 267–68,
849 A.2d 886 (2004) (expressly relying on Fort Trumbull
Conservancy, LLC, in holding that granting of motion to
dismiss was harmless error despite dismissal’s procedural
impropriety). Harmless error analysis is consistent with
the directive of General Statutes § 52-265 that a trial
court’s erroneous judgment should not be disturbed if
“the errors have not materially injured the appellant or
plaintiff in error . . . .” In the context of nonconstitutional
errors like the one at issue here, our Supreme Court has
established that “a nonconstitutional error is harmless
when an appellate court has a fair assurance that the error
did not substantially affect the [outcome].” (Internal
quotation marks omitted.) State v. Payne, 303 Conn. 538,
553, 34 A.3d 370 (2012). Accordingly, the disposal of a
civil action involving a nonconstitutional error depends
upon whether the trial court’s erroneous ruling “ ‘would
likely affect the result.’ ” Swenson v. Sawoska, 215 Conn.
148, 153, 575 A.2d 206 (1990). Here, the plaintiff has
failed to demonstrate that the trial court’s adjudication
of the issue of the applicability of § 52-592 by way of a
motion to dismiss constituted harmful error.
First, on its face, the plaintiff’s second complaint does
not sufficiently allege how her cause of action is covered
by the accidental failure of suit statute. Section 52-592
(a) provides plaintiffs an opportunity to relitigate a non-
suited matter only where the initial case was nonsuited
due to “mistake, inadvertence or excusable neglect.”
Ruddock v. Burrowes, 243 Conn. 569, 577, 706 A.2d 967
(1998). Although the complaint references § 52-592 (a) in
a single line, nowhere in the complaint does the plaintiff
mention mistake, inadvertence, or excusable neglect.
The complaint also does not indicate specifically which of
those situations applies to the plaintiff’s case, nor does it
Council v. Hein

provide facts that would allow a trial court to determine
that any of those situations applied to her case. Rather,
the second complaint primarily restates the allegations
from the plaintiff’s initial complaint that was nonsuited.
As a result, the allegations in the complaint focus on the
facts of the underlying personal injury claims and make
no attempt to explain the circumstances surrounding
the plaintiff’s nonsuit.
Next, the plaintiff had an opportunity to provide fac-
tual support for her § 52-592 action in her objection to
the defendants’ motion to dismiss, yet she failed to do
so. Instead, the memorandum supporting the plaintiff’s
objection relayed only one case, Ruddock v. Burrowes,
supra, 243 Conn. 569, in which a plaintiff prevailed
over allegations like those in the defendants’ motion
to dismiss, and the plaintiff does not indicate how she
could satisfy the factual conditions of § 52-592 (a) as the
plaintiff in that case did. Overall, the plaintiff’s memo-
randum averred that she was previously nonsuited due to
mistake, inadvertence, or excusable negligence, but it did
not offer information that might support that position.
Finally, the plaintiff had a clear opportunity to provide
evidence to support her invocation of § 52-592 (a) in this
action at the hearing on the motion to dismiss, but she
also failed to capitalize on that opportunity. At the hear-
ing, the plaintiff’s counsel specified for the first time
that the plaintiff’s nonsuit was due to inadvertence. Yet,
even after the court repeatedly prompted the plaintiff’s
counsel to offer information to support that assertion,
counsel was unable to do so. The plaintiff argues on
appeal that the trial court’s notice of the hearing was
“deficient” because it did not express that she would
be provided with an opportunity to present evidence in
support of the applicability of § 52-592 (a). The plain-
tiff’s memorandum in support of her objection to the
motion to dismiss, however, expressly contradicts this
argument. In the memorandum, the plaintiff asserted
that she had not previously had the opportunity to show
why the court’s dismissal of her prior suit was merely
Council v. Hein

a matter of form and protected by § 52-592 (a), but she
acknowledged her understanding that the scheduled
hearing on the motion to dismiss would provide her “just
that opportunity.” Ultimately, the plaintiff did not take
advantage of that opportunity.
At no point during the proceedings before the trial
court or on appeal has the plaintiff indicated that there
is a dispute over a material issue of fact, nor has she
indicated a need or requested an opportunity to conduct
discovery, requested an evidentiary hearing, or otherwise
intimated that such procedures could reveal redeeming
facts that have not yet come to light.4 Because the plain-
tiff has failed to offer even remote factual support for
her action under the accidental failure of suit statute, we
cannot conclude that additional opportunities to identify
supporting facts, such as the opportunities available
on summary judgment or on a motion to strike, would
likely yield a different outcome. See, e.g., McCutcheon
& Burr, Inc. v. Berman, 218 Conn. 512, 528, 590 A.2d
438 (1991) (recognizing that, while improper motion to
dismiss deprived plaintiff of opportunity to amend its
complaint, having that opportunity would have been
“unavailing to the plaintiff . . . because the plaintiff
was unable to demonstrate that it could add anything
to its complaint . . . that would avoid the deficiencies in
the original”).5
In sum, we cannot conclude that the plaintiff was
harmed by the erroneous procedure of resolving the
applicability of § 52-592 (a) by way of the defendants’
motion to dismiss.
4
To the extent that the plaintiff may have been entitled to an evi-
dentiary hearing, she has already conceded that the court essentially
provided her that opportunity with the hearing on the motion to dismiss.
5
The fact that the plaintiff abandoned her abuse of discretion and plain
error allegations, which would have required her to demonstrate that
the trial court’s ruling facilitated an injustice, further reinforces our
conclusion that the procedure followed in the present case was harmless.
Council v. Hein

The form of the judgment is improper, the judgment
dismissing the action is reversed and the case is remanded
with direction to render judgment for the defendants.
In this opinion the other judges concurred.