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DANIEL REALE ET AL. v. STATE OF
RHODE ISLAND ET AL.
(AC 42044)
Keller, Elgo and Harper, Js.
Syllabus
The plaintiff, a Connecticut resident, brought a spoliation of evidence action
against certain Rhode Island state and town defendants in connection
with certain neglect petitions commenced against him in Rhode Island.
The defendants moved to dismiss or, in the alternative, to strike the
plaintiff’s complaint. The trial court granted the defendants’ motions to
dismiss for lack of personal jurisdiction. On appeal to this court, the
plaintiff claimed that the trial court erred in determining that the defen-
dants did not waive their right to seek dismissal for lack of personal
jurisdiction by concurrently moving to strike the plaintiff’s complaint
as an alternative to dismissal, and that the court improperly granted
the defendants’ motions to dismiss on the ground of a lack of personal
jurisdiction. Held:
1. The trial court properly dismissed the claims against the state defendants,
as they were barred by the doctrine of sovereign immunity; during the
pendency of the appeal, the United States Supreme Court held that
states retain their sovereign immunity from private actions brought in
the courts of other states, and, thus, under the doctrine of sovereign
immunity, the state defendants were immune from suit brought by the
plaintiff in Connecticut.
2. The trial court properly exercised its discretion to allow the town defen-
dant to file a motion to dismiss and a motion to strike simultaneously;
this court has determined previously that a trial court has discretion to
overlook the simultaneous filing of a motion to dismiss and a motion
to strike in order to consider the motion to dismiss, and this court was
bound by that opinion, as it is the policy of this court that one panel
should not overrule the ruling of a previous panel unless the appeal is
heard en banc.
3. The trial court properly granted the town’s motion to dismiss for lack of
personal jurisdiction, as the town was not considered a foreign corpora-
tion within the meaning of the long-arm statute that sets forth service
of process on foreign corporations by a Connecticut resident (§ 33-929
[f]); the statutes (§§ 33-602 [18] and 33-1002 [15]) that define foreign
corporations and § 33-602 (6), which defines a corporation, do not
include towns, cities, boroughs or any municipal corporation or depart-
ment thereof within those definitions, and, thus, because the town is
not considered a foreign corporation, § 33-929 (f) did not confer personal
jurisdiction over it.
Argued May 23—officially released September 17, 2019
Procedural History
Action to recover damages for the spoliation of evi-
dence, and for other relief, brought to the Superior
Court in the judicial district of Windham, where the
court, Cole-Chu, J., granted the defendants’ motions to
dismiss and rendered judgment thereon, from which
the named plaintiff appealed to this court; thereafter,
the court, Cole-Chu, J., denied the named plaintiff’s
motion for articulation; subsequently, this court granted
the named plaintiff’s motion for review, but denied the
relief requested therein. Affirmed.
Daniel Reale, self-represented, the appellant
(named plaintiff).
Michael W. Field, assistant attorney general for the
state of Rhode Island, with whom, on the brief, was
Peter F. Neronha, attorney general for the state of
Rhode Island, for the appellee (named defendant).
Steven M. Richard, for the appellee (defendant town
of Coventry).
Opinion
HARPER, J. In this spoliation of evidence action, the
plaintiff Daniel Reale1 appeals from the judgment of
dismissal rendered by the trial court in favor of the
defendant town of Coventry, Rhode Island (town), and
the state defendants, the state of Rhode Island; the
Rhode Island Department of Children, Youth, and Fami-
lies; Investigator Harry Lonergan; and Attorneys Brenda
Baum and Diane Leyden, on the ground of a lack of
personal jurisdiction.2 On appeal, the plaintiff claims
that the court erred in (1) determining that the state
defendants did not waive their right to seek dismissal
for lack of personal jurisdiction by concurrently moving
to strike the plaintiff’s complaint as an alternative to
dismissal, and (2) granting the state defendants’
motions to dismiss on the ground of a lack of personal
jurisdiction.3 We affirm the judgment of the court.
The following facts, as set forth in the trial court’s
memoranda of decision and procedural history are rele-
vant to our resolution of this appeal. ‘‘The plaintiff is
a Connecticut resident and father of two children who
has joint custody with his ex-wife, who, during the
pertinent time, was a resident of Rhode Island. In June,
2016, two neglect petitions were commenced against
the plaintiff by the Rhode Island Department of Chil-
dren, Youth, and Families arising from an allegation by
a school psychologist employed by the town . . . that
the plaintiff’s son suffered a gunshot wound . . . .’’
‘‘That incident was investigated by the Coventry, Rhode
Island, Police Department, which determined that no
crime, abuse or neglect had occurred.’’
Thereafter, the ‘‘neglect petitions terminated in favor
of [the plaintiff] and his ex-wife in August, 2016, and
September, 2016, respectively.’’ ‘‘The plaintiff subse-
quently joined a civil action against the town, inter alia,
in the United States District Court for the District of
Rhode Island . . . .’’ In the federal action, ‘‘[the plain-
tiff] claim[ed] he suffered damages from [the] defen-
dants’ wilful withholding, concealment and destruction
of evidence, including documents and other records,
internal communications, recordings and expert opin-
ions during and since the prosecution of the . . . peti-
tions against him, despite notice by [the plaintiff] . . .
instructing said defendants . . . to preserve and pro-
duce such evidence.’’ The federal action subsequently
was dismissed with prejudice.
‘‘On January 3, 2018, [the plaintiff] . . . filed this
action against [the state defendants] for spoliation of
evidence. On February 5, 2018, the [town] moved . . .
to dismiss count one of the [plaintiff’s] complaint . . .
or, in the alternative, to strike count one based on (1)
the bar of res judicata; and (2) the claim that the legal
basis for the plaintiff’s claim—spoliation of evidence—
does not exist under governing law, i.e., the law of
the state of Rhode Island.’’ (Citation omitted; footnote
omitted.) A day later, ‘‘the [state defendants] moved
. . . to dismiss the [plaintiff’s] complaint for [a] lack
of personal jurisdiction or, in the alternative, to strike
the complaint based on (1) the prior pending case doc-
trine; (2) lack of service of process; and (3) the claim
that there is no cause of action for spoliation of evidence
under governing law, i.e., the law of Rhode Island.’’
(Citation omitted.)
‘‘On February 20, 2018, the [plaintiff] filed a joint
objection and memorandum of law . . . in opposition
to the [state defendants’] [motions] to dismiss . . .
[and] the town filed a reply brief.’’ ‘‘On February 22,
2018, [the state defendants] filed a reply brief.’’ On July
24, 2018, the trial court granted the state defendants’
motions to dismiss for lack of personal jurisdiction,
finding that the plaintiff failed (1) to allege sufficient
facts to subject the town to this state’s jurisdiction
under General Statutes § 33-929 (f), the long-arm statute
for foreign corporations, and (2) to establish that Gen-
eral Statutes § 52-59b, the long-arm statute for nonresi-
dent individuals, foreign partnerships and foreign vol-
untary associations, authorized the exercise of personal
jurisdiction over the state defendants. This appeal
followed.
I
As a preliminary matter, we conclude that this court
need not address the merits of the plaintiff’s claims
against the state defendants, as they are barred by the
doctrine of sovereign immunity. Sovereign immunity
implicates subject matter jurisdiction and because sub-
ject matter jurisdiction concerns a ‘‘basic competency
of the court, [it] can be raised . . . by the court sua
sponte, at any time.’’ Daley v. Hartford, 215 Conn. 14,
27–28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.
Ct. 513, 112 L. Ed. 2d 525 (1990). During the pendency of
this appeal, the United States Supreme Court expressly
overruled Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182,
59 L. Ed. 2d 416 (1979),4 by holding that states retain
their sovereign immunity from private suits brought in
the courts of other states. Franchise Tax Board v.
Hyatt, U.S. , 139 S. Ct. 1485, 1497, 203 L. Ed.
2d 768 (2019).5 As the court explained, ‘‘[e]ach State’s
equal dignity and sovereignty under the Constitution
implies certain constitutional limitation[s] on the sover-
eignty of all of its sister States. . . . One such limitation
is the inability of one State to hale another into its
courts without the latter’s consent. The Constitution
does not merely allow States to afford each other immu-
nity as a matter of comity; it embeds interstate sovereign
immunity within the constitutional design.’’ (Citation
omitted; internal quotation marks omitted.) Id. Thus,
under the doctrine of sovereign immunity, the state
defendants are immune from suit brought by the plain-
tiff in Connecticut.6
On the basis of the foregoing, we affirm the judgment
of dismissal in regard to the plaintiff’s claims against
the state defendants.
II
We next address the plaintiff’s claims against the
town in turn. The plaintiff first claims that the town,
by filing a motion to dismiss and a motion to strike
concurrently, waived its right to file the motion to dis-
miss on the basis of personal jurisdiction.
This court previously has held that a trial court has
discretion to overlook the simultaneous filing of a
motion to dismiss and a motion to strike in order to
consider the motion to dismiss. Sabino v. Ruffolo, 19
Conn. App. 402, 404–405, 562 A.2d 1134 (1989). Although
this court noted in Sabino that ‘‘generally, pleadings
are not to be filed out of the order specified in [Practice
Book] § 112 [now § 10-6], and the filing of a pleading
listed later in the order set out by § [10-6] waives the
right to be heard on a pleading that appears earlier,’’ it
ultimately concluded that the language in Practice Book
§ [10-7] providing, ‘‘when the [judicial authority] does
not otherwise order’’; (emphasis omitted); enables the
trial court to exercise discretion in considering a plead-
ing filed out of order. Id., 404. Furthermore, this court
concluded that its interpretation was consistent with
the Practice Book’s purpose ‘‘to facilitate business and
advance justice.’’ (Internal quotation marks omitted.)
Id.
It is the policy of this court ‘‘that one panel should
not, on its own, [overrule] the ruling of a previous panel’’
unless the appeal is heard en banc. (Internal quotation
marks omitted.) State v. Ortiz, 133 Conn. App. 118, 122,
33 A.3d 862 (2012), aff’d, 312 Conn. 551, 93 A.3d 1128
(2014). Because we are bound by this court’s opinion
in Sabino v. Ruffolo, supra, 19 Conn. App. 404–405,
we conclude that the trial court properly exercised its
discretion to allow the town to file a motion to dismiss
and a motion to strike simultaneously.
III
The plaintiff also claims that the court erred in grant-
ing the town’s motion to dismiss on the ground of a
lack of personal jurisdiction. We disagree.
‘‘[A] challenge to the jurisdiction of the court presents
a question of law over which our review is plenary.
. . . When a defendant challenges personal jurisdiction
in a motion to dismiss, the court must undertake a two
part inquiry to determine the propriety of its exercising
such jurisdiction over the defendant. The trial court
must first decide whether the applicable state long-arm
statute authorizes the assertion of jurisdiction over the
[defendant]. If the statutory requirements [are] met,
its second obligation [is] then to decide whether the
exercise of jurisdiction over the [defendant] would vio-
late constitutional principles of due process.’’ (Citation
omitted; internal quotation marks omitted.) Kenny v.
Banks, 289 Conn. 529, 532–33, 958 A.2d 750 (2008).
‘‘Only if we find the [long-arm] statute to be applicable
do we reach the question of whether it would offend
due process to assert jurisdiction.’’ (Internal quotation
marks omitted.) Matthews v. SBA, Inc., 149 Conn. App.
513, 543, 89 A.3d 938, cert. denied, 312 Conn. 917, 94
A.3d 642 (2014).
The provision of Connecticut’s long-arm statute that
sets forth service of process on a foreign corporation by
a Connecticut resident is § 33-929 (f), which provides:
‘‘Every foreign corporation shall be subject to suit in
this state, by a resident of this state or by a person
having a usual place of business in this state, whether
or not such foreign corporation is transacting or has
transacted business in this state and whether or not it
is engaged exclusively in interstate or foreign com-
merce, on any cause of action arising as follows: (1)
Out of any contract made in this state or to be performed
in this state; (2) out of any business solicited in this state
by mail or otherwise if the corporation has repeatedly so
solicited business, whether the orders or offers relating
thereto were accepted within or without the state; (3)
out of the production, manufacture or distribution of
goods by such corporation with the reasonable expecta-
tion that such goods are to be used or consumed in
this state and are so used or consumed, regardless of
how or where the goods were produced, manufactured,
marketed or sold or whether or not through the medium
of independent contractors or dealers; or (4) out of
tortious conduct in this state, whether arising out of
repeated activity or single acts, and whether arising out
of misfeasance or nonfeasance.’’ (Emphasis added.)
General Statutes § 33-602 (18) defines a ‘‘foreign cor-
poration’’ as ‘‘a corporation incorporated under a law
other than the law of this state’’; (emphasis added);
and General Statutes § 33-1002 (15) defines a ‘‘foreign
corporation’’ as ‘‘any nonprofit corporation with or
without capital stock which is not organized under the
laws of this state.’’ (Emphasis added.) Moreover, § 33-
602 (6) provides that a ‘‘corporation’’ is defined, in part,
as ‘‘a stock corporation,’’ and § 33-1002 (8) provides
that a ‘‘corporation’’ is ‘‘a corporation without capital
stock or shares, which is not a foreign corporation,
incorporated under the laws of this state . . . but shall
not include towns, cities, boroughs or any municipal
corporation or department thereof.’’ (Emphasis added.)
Neither § 33-602 nor § 33-1002 include ‘‘towns, cities,
boroughs or any municipal corporation or department
thereof’’; General Statutes § 33-1002 (8); within their
definitions of ‘‘corporation’’ or ‘‘foreign corporation.’’
Thus, because the town is not considered a foreign
corporation within the meaning of our General Statutes,
§ 33-929 (f) does not confer personal jurisdiction over
the town.7 Accordingly, we conclude that the court
properly rendered judgment dismissing the plaintiff’s
claim against the town for a lack of personal juris-
diction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This action was brought by two self-represented plaintiffs: Daniel Reale
and Benjamin Ligeri. Daniel Reale was the only plaintiff to appeal from
the judgment of the trial court. Accordingly, we refer to Daniel Reale as
the plaintiff.
2
The defendants filed two motions to dismiss, one filed by the state
defendants and one filed by the town. The trial court issued separate memo-
randa of decision for each motion, both of which dismissed the plaintiff’s
claims on the ground of a of lack personal jurisdiction.
3
The plaintiff raises four issues in this appeal, which are whether (1) the
defendants’ motions to strike were fatally deficient; (2) the defendants
waived personal jurisdiction; (3) two types of pleadings can be combined;
and (4) the trial court erred in granting the defendants’ motions and ordering
dismissal. We consider the plaintiff’s formation of the issues duplicative
and summarize them accordingly.
4
In Nevada v. Hall, supra, 440 U.S. 416, the United States Supreme Court
held that the federal constitution did not bar private suits against a state
in the courts of another state as sovereign immunity was only available if
the forum state voluntarily decided to respect the dignity of another state
as a matter of comity.
5
Prior to oral argument, the state defendants filed a notice of supplemental
authority pursuant to Practice Book § 67-10 citing Franchise Tax Board v.
Hyatt, supra, 139 S. Ct. 1492, as supplemental authority supporting a dis-
missal on the ground of sovereign immunity. The plaintiff had an opportunity
to respond to the notice and did so by stating the ‘‘[s]upplemental [a]uthority
[was] irrelevant.’’
6
The Rhode Island Department of Children, Youth and Families is an
entity of the state of Rhode Island. Moreover, the complaint reveals that
Harry Lonergan, Diane Leyden, and Brenda Baum were sued while acting
in their official capacities as state employees. See Hultman v. Blumenthal,
67 Conn. App. 613, 620, 787 A.2d 666 (‘‘[t]he doctrine of sovereign immunity
protects state officials and employees from lawsuits resulting from the
performance of their duty’’), cert. denied, 259 Conn. 929, 793 A.2d 253
(2002). Accordingly, the plaintiff’s claims are barred against all of the state
defendants by the doctrine of sovereign immunity.
7
In reaching this conclusion, we disagree with the trial court that § 33-
929 (f) applies to this action. In its memorandum of decision, the trial court
relied on language from Osso v. Marc Automotive, Inc., Superior Court,
judicial district of Ansonia-Milford, Docket No. CV-XX-XXXXXXX-S (July 1,
2013), which states that ‘‘[t]he [g]eneral [s]tatute’s definition for foreign
corporation as it relates to § 33-929 is quite broad and has been applied in
the past by the Superior Court to apply to foreign municipalities.’’ No appel-
late court, however, has held that § 33-929 applies to foreign municipalities.
Moreover, as indicated, our General Statutes have explicitly excluded
‘‘towns, cities, boroughs or any municipal corporation or department
thereof’’; General Statutes § 33-1002 (8); from the definition of ‘‘corporation’’
and, thus, ‘‘foreign corporation.’’
Although we recognize that the trial court concluded that § 33-929 applies
to the town and that the parties did not dispute whether the town is a
foreign corporation, we agree with the trial court that, in regard to the
underlying issue of whether personal jurisdiction exists, § 33-929 (f) does
not authorize personal jurisdiction over the town. Thus, as our case law
allows, we affirm the trial court’s judgment on different grounds. See White
v. Dept. of Children & Families, 136 Conn. App. 759, 767 n.5, 51 A.3d 1116
(‘‘[w]e may affirm the judgment of the court on different grounds if we
disagree with the grounds relied on by the court’’), cert. denied, 307 Conn.
906, 53 A.3d 221 (2012).