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*********************************************** 
JOSEPHINE MILLER v. BOARD OF

EDUCATION OF THE CITY OF

BRIDGEPORT ET AL.

(AC 40333)

Elgo, Bright and Moll, Js.

Syllabus

The plaintiff brought this action in May, 2015, against the defendants alleging

claims for quantum meruit and unjust enrichment related to the payment

for certain legal services she allegedly had provided. The plaintiff had

brought an action alleging similar claims in 2010, which was dismissed

by the trial court. This court affirmed that dismissal in October, 2013.

During the pendency of the 2010 action, the plaintiff brought an action

in 2012 alleging race discrimination claims, which was removed to federal court and dismissed. The plaintiff’s appeal in that action was dismissed in October, 2014. The trial court granted the defendants’ motion

to dismiss the present action, concluding, inter alia, that the plaintiff

could not avail herself of the accidental failure of suit statute (§ 52-592

[a]), which requires a new action for the same cause to be commenced

within one year after the determination of the original action, because

she 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). On the plaintiff’s appeal to this court, held that

the trial court properly granted the defendants’ motion to dismiss the

present action as untimely, the plaintiff having failed to file this action

within the one year savings period: the 2010 action, in which the plaintiff

raised claims sounding in quantum meruit and unjust enrichment like

in the present action, was the original action for purposes of § 52-592,

and the 2012 action, in which the plaintiff asserted race discrimination

under a federal statute, was not for the same cause as the present action

and, thus, its disposition had no bearing on the timeliness of the present

action; accordingly, to take advantage of § 52-592, the plaintiff would

have had to commence the present action within one year after the

determination of the 2010 action, the dismissal of which this court

affirmed on appeal in October, 2013, and because the plaintiff commenced the present action in May, 2015, which was outside the one

year period, she could not take advantage of the savings statute.

Argued December 10, 2018—officially released March 12, 2019

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. Affirmed.

Josephine S. Miller, self-represented, the appellant

(plaintiff).

John P. Bohannon, deputy city attorney, for the

appellees (defendants).
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 plain-
tiff’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 be tried 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, 216 Conn. 412, 419,

581 A.2d 1050 (1990). Section 52-592 (c) provides: ‘‘If

an appeal is had from any such judgment to the Supreme

Court or Appellate Court, the time the case is pending

upon appeal shall be excluded in computing the time

as above limited.’’

Here, the 2010 action, in which the plaintiff raised

claims sounding in quantum meruit and unjust enrichment, is the ‘‘original action.’’ The 2012 action, in which

the plaintiff asserted race discrimination claims pursuant to 42 U.S.C. § 1981, was not for the ‘‘same cause’’ as

the present action, in which the plaintiff again asserted

claims sounding in quantum meruit and unjust enrichment, and, thus, the disposition of the 2012 action has

no bearing on the timeliness of the present action under

§ 52-592 (a). See Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 118, 735 A.2d 782 (1999) (concluding that subsequent action in which plaintiff ‘‘relies

upon the same facts, makes the same allegations, and

seeks the same relief’’ is action for same cause).8 Thus,

to take advantage of § 52-592 (a), the plaintiff would

have had to commence the present action within one

year after the ‘‘determination’’ of the 2010 action.

On December 10, 2012, after the trial court had denied

her motion for reconsideration on November 19, 2012,

the plaintiff appealed from the July 10, 2012 judgment

dismissing the 2010 action, which this court affirmed

on October 1, 2013. Excluding the time that the 2010

action was pending upon appeal; see § 52-592 (c); we

conclude that the one year savings period under § 52-

592 (a) expired in 2014.9 Having commenced the present
action in May, 2015, the plaintiff could not take advantage of the savings statute. Accordingly, we conclude

that the court properly granted the defendants’ motion

to dismiss the present action as untimely and rendered

judgment thereon.

The judgment is affirmed.

1 For purposes of clarity, we refer to the board, Anastasi, and the city

collectively as the defendants, and individually by name.

2 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 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.’’

3 General Statutes § 7-101a (a) provides in relevant part: ‘‘Each municipality shall protect and save harmless any municipal officer, whether elected

or appointed, of any board, committee, council, agency or commission . . .

or any municipal employee, of such municipality from financial loss and

expense, including legal fees and costs, if any, arising out of any claim,

demand, suit or judgment by reason of alleged negligence, or for alleged

infringement of any person’s civil rights, on the part of such officer of such

employee while acting in the discharge of his duties.’’

4 On April 10, 2017, the court issued a corrected memorandum of decision

to correct a scrivener’s error.

5

‘‘[A]lthough a motion to dismiss may not be the appropriate procedural

vehicle for asserting that an action is not saved by . . . § 52-592, our

Supreme Court has held that a court properly may consider a motion to

dismiss in such circumstances when the plaintiff does not object to the use

of the motion to dismiss.’’ Stevenson v. Peerless Industries, Inc., supra, 72

Conn. App. 606 n.6. In the present case, because the plaintiff did not object

to the use of a motion to dismiss, the court properly decided the motion

on the merits.

6

In her appellate brief, the plaintiff also argues that the trial court failed

to articulate its decision with respect to a constitutional argument that she

raised. After filing this appeal, the plaintiff filed a motion for articulation,

which the trial court denied. The plaintiff did not file a motion for review

of the denial of her motion for articulation. To the extent that the plaintiff

asserts that the court erred in denying her motion for articulation, we decline

to review this claim. Pursuant to Practice Book § 66-5, ‘‘[t]he sole remedy

of any party desiring the court having appellate jurisdiction to review the

trial court’s decision on the motion [for articulation] filed pursuant to this

section . . . shall be by motion for review under Section 66-7.’’ Thus, the

plaintiff’s ‘‘pursuit of review and remedy through appeal is . . . inappropriate.’’ Macellaio v. Newington Police Dept., 145 Conn. App. 426, 437–38, 75

A.3d 78 (2013).

7 Because we disagree with the plaintiff’s second argument, we need not

address the merits of the plaintiff’s first argument. In addition, as an alternative ground for affirmance, the defendants argue that the plaintiff lacks

standing to bring a direct claim for indemnification under General Statutes

§ 7-101a against a municipality. We note that, although the defendants frame

their argument as one of standing, the plaintiff did not assert a statutory

claim under § 7-101a. Rather, her claims sound in quantum meruit and unjust

enrichment, while relying on allegations that Cimmino was entitled to a

defense and indemnity by the board pursuant to § 7-101a. On the basis of

the record before us, we cannot conclude that the plaintiff lacked standing

to assert the claims that she raised.

8 The plaintiff argues that this court should overrule our Supreme Court’s

decisions in Peabody N.E., Inc. v. Dept. of Transportation, supra, 250 Conn.

105, and Pintavalle v. Valkanos, supra, 216 Conn. 412. ‘‘It is axiomatic that

. . . this court [is] without authority to overrule the decisions of our

Supreme Court.’’ West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15,

24, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).
9

In dismissing the present action, the trial court concluded that the one

year savings period of § 52-592 (a) began to run on October 1, 2013, when

this court affirmed the judgment dismissing the 2010 action. Thus, the court

implicitly concluded that the savings period expired on October 1, 2014.

We note that § 52-592 (c) provides that ‘‘the time the case is pending upon

appeal shall be excluded in computing’’ the savings period, suggesting that

the time between the entry of judgment and the filing of an appeal is included

in such computation. Given that the parties have not addressed the effect

of § 52-592 (c), and given that the present action is not saved pursuant to

§ 52-592 (a) regardless of whether the savings period expired on October

1, 2014, or some time prior thereto, we do not address the propriety of the

court’s conclusion that the savings period commenced on October 1, 2013.