Opinion
FSTCV176031574S
06-26-2018
Arthur Thomas PLANT v. Paul HOPPER dba Paul Hopper & Associates et al.
UNPUBLISHED OPINION
OPINION
Hon. Kevin Tierney, J.T.R.
This Motion to Dismiss alleges that the plaintiff, Arthur Thomas Plant, "does not have standing to bring the claims presented in the Revised Complaint and therefore this Court lacks subject matter jurisdiction." (# 109.00, page 1.) The specific claim is that the underlying monetary claims were assigned to the plaintiff by Anita O’Brien, aka Anita M. O’Brien. Anita O’Brien did not own those claims, and she did not have the ability to assign them to the plaintiff, Arthur Thomas Plant, since they belonged to the Chapter 7 bankruptcy estate. The Motion to Dismiss alleges that it was only the Chapter 7 Trustee that had the legal authority to assign those claims to Arthur Thomas Plant and no such assignment occurred.
The parties by counsel of record appeared before this court at the March 5, 2018 short calendar. They agreed to submit the issues on the Motion to Dismiss on the basis of "the complaint supplemented by undisputed facts evidenced in the record." Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265, 277 (2015). The parties specifically on the record chose not to proceed on the complaint alone. Neither party requested an evidentiary hearing.
The operative complaint is the two-count Revised Complaint dated June 8, 2017 (# 104.00), alleging Breach of Contract and Unjust Enrichment. The First Count sounding in Breach of Contract is thirteen paragraphs and alleges in paragraph 4: "On April 13, 2015, Anita O’Brien sold her claim against the Defendants to Arthur Thomas Plant, who is a resident of Darien, CT." This monetary claim is based upon services provided by Anita O’Brien and invoices billed by Anita O’Brien to both defendants. After payment of certain sums, a balance due of $17,150.32 is alleged to remain The Second Count of Unjust Enrichment incorporates all thirteen paragraphs of the Breach of Contract First Count and alleges the same sum of $17,150.32 owed to Anita O’Brien by the two named defendants.
The Motion to Dismiss (# 109.00) was supported by the thirteen-page Memorandum of Law dated December 19, 2017 (# 110.00), and four separate pleadings entitled Exhibits A, B, C and D (# 111.00, # 112.00, # 113.00, and # 114.00) that total 71 pages. Included within those exhibits is the filing from the United States Bankruptcy Court, District of Connecticut, Debtor Anita M. O’Brien, Case Number 10-51825 filed on August 1, 2010. (Exhibit C, # 113.00.) The Plaintiff’s Objection to Defendants’ Motion to Dismiss dated February 5, 2018 (# 121.00) was supported by a four-page Memorandum of Law also dated February 5, 2018 (# 122.00). Although the defendants filed two affidavits and a number of other documents in support of their Motion to Dismiss, the plaintiff filed no supporting affidavits or documents.
In addition to the operative complaint, the June 8, 2017 Revised Complaint (# 104.00), the court had before it the Defendants’ Answer and Special Defenses dated July 11, 2017 (# 108.00). The five Special Defenses are: "Anita O’Brien did not have the authority to assign the claim to the plaintiff as the claim was an asset of the Anita O’Brien chapter 7 bankruptcy estate and only the Chapter 7 Trustee has authority to assign the claim. The plaintiff lacks standing to bring the claim"; "The defendants paid Anita O’Brien what she was owed under the contract between her and the defendants"; "The plaintiff’s claims are barred by C.G.S. § 52-576." The next two Special Defenses relate to the Second Count of unjust enrichment alleging: "The plaintiff cannot recover under the theory of unjust enrichment where there is remedy under a contract:" and "The plaintiff’s claim is barred by the equitable doctrine of laches." The pleadings were not closed as of the March 5, 2018 hearing. The matter has not been assigned to the trial list. No scheduling order has entered. Neither party claimed lack of discovery prevented this court from deciding the issues raised in this instant Motion to Dismiss. The court will not consider any pleadings or documents filed with the court after March 5, 2018.
"In ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33 (2003).
"In determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Amodio v. Amodio, 247 Conn. 724, 728 (1999). The defendants have alleged that the plaintiff, Arthur Thomas Plant, lacks standing as the proper person to commence this litigation thus this court is deprived of subject matter jurisdiction. If a party is found to lack standing, the court is without subject matter jurisdiction to determine the litigation. Fort Trumbull Conservancy LLC v. New London, supra, 265 Conn. 432. "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather, it is a practical concept designed to ensure the courts and parties are not vexed by suits brought to vindicate nonjusticable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury that he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy ... provides the requisite assurance of concrete adverseness and diligent advocacy." Broadnax v. New Haven, 270 Conn. 133, 153 (2004). "Standing requires no more than a colorable claim of injury ..." May v. Coffey, 291 Conn. 106, 112 (2009). "It does not require a court to hold that the party has a cause of action, but only what the Supreme Court, in 2006 in Wesley v. Schaller Subaru, Inc. described as ‘a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected.’ What is needed, the Wesley court held, is ‘no more than a colorable claim of injury; a party ordinarily establishes ... standing by allegations of injury.’ " McNiece v. Ryan Ryan Deluca, LLP, Superior Court, judicial district of New London, Docket Number KNL CV 14-5014713 S (August 19, 2014, Moukawsher, J.)
In this case the court has the benefit of the Chapter 7 bankruptcy filings made by Anita O’Brien presented to the court at the March 5, 2018 short calendar hearing. The court finds that on August 1, 2010 Anita O’Brien, also known as Anita M. O’Brien, filed a voluntary bankruptcy petition commonly referenced as a chapter 7 filing. Pursuant to the rules and statutes she was required to file schedules and statements with the bankruptcy court disclosing all her assets including those that would be qualified as accounts receivable and executory contracts. Exhibit C, (# 113.00) filed by the defendants, is a fifty-page filing from the United States Bankruptcy Court, District of Connecticut, Chapter 7 proceedings filed by Anita M. O’Brien in Case Number 10-51825. Anita M. O’Brien was assisted in preparing and executing this document by attorney Alfred J. Cali with law offices in Bridgeport. SCHEDULE G is titled "EXECUTORY CONTRACTS AND UNEXPIRED LEASES." (# 113.00, page 27 of 50.) SCHEDULE G is one page. It contains no information of any such assets or any value of any assets. SCHEDULE G contains a check mark in the box titled: "Check this box if debtor has no executory contracts or unexpired leases."
SCHEDULE B is titled "PERSONAL PROPERTY." (# 113.00, pages 7, 8 and 9 of 50.) On the left column of SCHEDULE B is a list titled TYPE OF PROPERTY, with 35 numbered preprinted subcategories of personal property. Number 16 is "Accounts receivable." Typed in to the right of Number 16 "Accounts receivable" is: "Accounts receivable (Mandala contract) (contract dispute likely uncollectable) 70,000.00." (# 113.00, page 8 of 50) Number 14 is "Interests in partnerships or joint ventures. Itemize." Number 14 contains an "x" in the box adjacent labeled "NONE." (# 113.00, page 7 of 50.) The balance of SCHEDULE B lists various items of cash, motor vehicles, checking accounts, furniture, clothing, jewelry, skis, golf clubs, and other equipment. No other items of personal property are filed in SCHEDULE B. There is no evidence before this court that the Mandala contract has any connection with the claims asserted in this litigation.
This court has examined carefully the entire Exhibit C (# 113.00) and notes no filing whatsoever of any joint ventures, assets, partnership interest, or claim by Anita O’Brien also known as Anita M. O’Brien as against either Paul Hopper, Paul Hopper and Associates or A+ Architects, P.C. The statutes requires a Chapter 7 bankruptcy filer to list all claims. 11 U.S. Code 541(a)(1): "all legal or equitable interests of the debtor in property as of the commencement of the case." After August 1, 2010 the bankruptcy court appointed Roberta Napolitano, Esq. as the Chapter 7 Trustee pursuant to 11 U.S. Code 704. Roberta Napolitano had the authority and responsibility to collect and reduce any money due Anita O’Brien, to make that part of the bankruptcy estate, and to investigate the financial affairs of Anita M. O’Brien. Furthermore, the Chapter 7 Trustee has the authority to assign any claims in the bankruptcy estate to a third person. 11 U.S. Code 363(b). There is no information before this court that any such assignment, was authorized or performed by Roberta Napolitano as the Chapter 7 Trustee as a result of which that assignment Arthur Thomas Plant became the owner of the claims at issue in this litigation.
The issue before this court apparently revolves around the definition used in bankruptcy of the phrase "executory contract." "A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations ... It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies ... The determinative question is whether the contract was executed." Bagoly v. Riccio, 102 Conn.App. 792, 799, cert. denied, 284 Conn. 931 (2007): Nassra v. Nassra, 180 Conn.App. 421, 435-36 (2018).
SCHEDULE G of the bankruptcy petition, (# 113.00, page 27 of 50), requires the following to be filled out: "Describe all executory contracts of any nature and all unexpired leases of real or personal property. Include any timeshare interests. State nature of debtor’s interest in contract, i.e. "Purchaser," "Agent," etc. State whether debtor is the lessor or lessee of a lease. Provide the names and complete mailing addresses of all other parties to each lease or contract described ... See, 11 U.S.C. § 112 and Fed.R.Bankr.P. 1007m."
The Trustee dealing with an executory contract may accept or reject an executory contract of the debtor but need not do either. The assumption or rejection of an executory contract is discretionary by the Trustee. "First, assumption or rejection of an executory contract is discretionary; the trustee may accept or reject an executory contract of the debtor, but need not do either." CCT Communications, Inc. v. Zone Telecom, Inc., 327 Conn. 114, 143 (2017).
The court now turns to the allegations of the Revised Complaint and must make the assumption that those allegations are true. It appears from those allegations relating to those contracts that the underlying relationship between Anita O’Brien and either of the two defendants may not amount to fully enforceable contracts. It is also not clear based on the dates alleged in the complaint and whether those events occurred before or after the August 1, 2010 bankruptcy filing or after the December 2010 termination of the bankruptcy proceedings. The court therefore concludes that it is possible that had such a claim been placed in the bankruptcy petition, Roberta Napolitano the Trustee for Chapter 7 bankruptcy, would determine that it was an executory contract, decline to enforce the contract, and abandon the contract. Upon that action Anita O’Brien would then be fully capable of assigning the contract claim to Arthur Thomas Plant thereby establishing standing in the current plaintiff. This court must view those possibilities in light of the standards set forth in motions to dismiss as to whether or not the plaintiff has alleged "a colorable claim of injury."
The defendants invoke the concept of judicial estoppel and they claim that Anita O’Brien filed a false bankruptcy petition. Neither concept is relevant to this court’s consideration of whether or not the plaintiff, Arthur Thomas Plant, had a colorable claim of injury. At trial Anita O’Brien’s credibility may be seriously attacked but that is not a relevant consideration at this motion to dismiss stage of the legal proceedings now before this court.
The litigants are entitled to their day in court. The plaintiff is entitled to have a trial. "Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court." Egri v. Foisie, 83 Conn.App. 243, 249 (2004). "A party has the same right to submit a weak case as he has to submit a strong one." Thomas v. City of West Haven, 249 Conn. 385, 392 (1999).
The defendants’ December 19, 2017 Motion to Dismiss (# 109.00) is denied.