LAVERY, J.
The plaintiff, 710 Long Ridge Operating Company II, LLC, appeals from the judgment of the trial court dismissing its action against the defendant, Randolph Stebbins. On appeal, the plaintiff claims that the court did not have authority to dismiss the action after judgment had been rendered in the action. We reverse the judgment of the trial court.
The following facts and procedural history are relevant to this appeal. Because in this appeal we review the trial court's ruling on a motion to dismiss, we take the facts to be those alleged in the complaint, construing them in a manner most favorable to the plaintiff. See Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 132, 918 A.2d 880 (2007); see also Sullins v. Rodriguez, 281 Conn. 128, 131-32, 913 A.2d 415 (2007). On December 26, 2012, the plaintiff filed an amended complaint against the defendant, docket number FST-CV12-6016072-S, alleging breach of contract (first action). In its complaint, the plaintiff, a licensed operator of a chronic care and convalescent facility, alleged that the defendant failed to satisfy the terms of an admissions agreement pertaining to his stepfather, Robert Scanlon. The plaintiff served the defendant with the summons and complaint; however, the plaintiff was late in returning service to the court, exceeding the two month time limit imposed by General Statutes § 52-48(b). The defendant's counsel "declined to reply to [the plaintiff's counsel] after numerous weeks," and, accordingly, the plaintiff was unable to obtain the defendant's waiver of the defective service and to proceed with the first action.
Accordingly, on February 20, 2013, the plaintiff commenced the present second action against the defendant, docket number FST-CV13-6017386-S, by serving him with a new summons and complaint (second action). It is undisputed that the first action and the second action contained identical allegations. On March 19, 2013, the plaintiff filed, in the second action, a motion for default for failure to appear in accordance with Practice Book § 17-25.
On May 20, 2013, the defendant filed "a motion to dismiss the plaintiff's judgment" pursuant to Practice Book (2013) § 10-30.
On July 22, 2013, a hearing was held on the motion to dismiss. On that date, neither the first nor the second action was "pending." See footnote 7 of this opinion. The court compared the pleadings of the first action with those of the second action. The court took judicial notice of the contents of the prior pending file.
On appeal, the plaintiff claims that the court did not have authority to dismiss the second action after judgment had been rendered in that action. We agree.
As a preliminary matter, we set forth the 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.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [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.) Beecher v. Mohegan
The defendant argues that the pendency of the first action deprived the court of subject matter jurisdiction. The defendant further claims that his filing of a motion to dismiss was proper because, as articulated by the court, subject matter jurisdiction issues arising from a prior pending action "can be raised at any time regardless of the rules relating to the practice book." We disagree. Even if the prior pending action doctrine were applicable to this case, it would not implicate the subject matter jurisdiction of the court.
"While courts have an inherent power to open, correct and modify judgments... the duration of this power is restricted by statute and rule of practice. In order for a trial court to open a civil judgment, a motion to open or set aside must be filed within four months of the date that judgment is rendered." (Citation omitted.) Batory v. Bajor, 22 Conn.App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). No such motion was filed by the defendant within four months of the March 26, 2013, judgment, pursuant to General Statutes § 52-212
The statutory limitation imposed on motions to open judgments does not implicate the court's jurisdiction. Rather, our Supreme Court has explained that General Statutes "§ 52-212a
In the present case, the trial court lacked authority to open the judgment because the defendant never filed a motion to open pursuant to § 52-212. The default judgment was rendered on March 26, 2013, and the defendant filed his motion to dismiss on May 20, 2013. Although the defendant filed his motion to dismiss within the four month time limit imposed by § 52-212, the motion to dismiss did not satisfy the requirements of § 52-212(a), specifically as to "reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense." Also, the motion to dismiss was not verified by the oath of the defendant or his attorney, and did not particularly set forth the reason
The judgment is reversed and the case is remanded with direction to reinstate the judgment for the plaintiff.
In this opinion the other judges concurred.