Opinion
HHDCV176079709S
02-07-2019
PREMIER CAPITAL, LLC v. Daniel ZITO
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
On December 10, 2018, the court heard oral argument concerning the defendant Daniel Zito’s motion to dismiss (# 108) the plaintiff Premier Capital, LLC’s (Premier or plaintiff) complaint on the basis that the plaintiff lacks standing to enforce a 1997 judgment in the amount of $ 882, 129.48 against Zito. For the reasons set forth below the defendant’s motion to dismiss is granted.
I
Background
The plaintiff alleges in its June 21, 2017 complaint that Zito has failed to make payments toward the June 24, 1997 judgment. The defendant argues that the plaintiff lacks standing to bring this suit. The defendant asserts that judgment was entered against Zito in favor of the Federal Deposit Insurance Corporation as receiver of the New Bank of New England. The defendant alleges that the plaintiff was not a plaintiff in the action against the defendant, or even a named substitute plaintiff. The judgment was later assigned several times. The defendant also argues that the alleged assignment to Premier could not have taken place before the commencement of this action, because it was not assigned to Premier until March of 2018, after the commencement of this action.
In its opposition, the plaintiff argues that subsequent to the judgment in favor of the Federal Deposit Insurance Corporation against the defendant, the judgment has undergone a series of assignments to subsequent holders. The plaintiff argues that the first assignment mistakenly referenced the assignor as FDIC as receiver for Bank of New England. The plaintiff asserts that whoever drafted the initial assignment to Republic Credit inadvertently and mistakenly omitted the "New" from the name of the Assignor. Additionally, the plaintiff contends that a request has been made to investigate this error.
The plaintiff asserts that it has been the judgment holder since March 30, 2005, and the subject March 2018 assignment was executed for clarification purposes only. The plaintiff also argues that on November 17, 2010, the court substituted the plaintiff as the party plaintiff in the original action and the defendant did not object then. Therefore, the plaintiff argues that the defendant is now estopped from doing so.
II
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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
The legal standard governing a motion to dismiss for lack of subject matter jurisdiction is well settled. "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a 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 ... In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; ... other types of undisputed evidence; ... and/or public records of which judicial notice may be taken; ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ...; the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ... Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ..." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
"The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
III
Discussion
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010).
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." (Internal quotation marks omitted.) Mark v. Neundorf, 147 Conn.App. 485, 489, 83 A.3d 685 (2014). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014).
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes ... standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, supra, 298 Conn. 164.
"If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnote omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ..." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, supra, 315 Conn. 226.
Since subject matter jurisdiction may not be waived and may be raised at any time, the plaintiff’s estoppel argument is unpersuasive. Also, "[w]he[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived." (Internal quotation marks omitted.) Miller v. Dep’t of Agric., 168 Conn.App. 255, 277, 145 A.3d 393, cert. denied, 323 Conn. 936, 151 A.2d 386 (2016).
Standing is to be determined "at the time the action was commenced." LaSalle Bank, Nat. Ass’n v. Bialobrzeski, 123 Conn.App. 781, 790, 3 A.3d 176 (2010). See Bozelko v. Milici, 139 Conn.App. 536, 540 n.4, 57 A.3d 762 (2012), cert. denied, 308 Conn. 914, 61 A.3d 101 (2013) (same).
"In Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004). According to the return (# 100.30), the defendant was served with process on June 21, 2017.
As part of its presentation, the defendant presented Exhibit 7, an Assignment of Judgment from National Collectors & Liquidators, L.P. to the plaintiff, dated March 22, 2018, after this action was commenced.
"Generally, to constitute an assignment there must be a purpose to assign or transfer the whole or a part of some particular thing, debt, or chose in action, and the subject matter of the assignment must be described with such particularity as to render it capable of identification." Dysart Corp. v. Seaboard Sur. Co., 240 Conn. 10, 17, 688 A.2d 306 (1997). "A valid assignment transfers to the assignee exclusive ownership of all of the assignor’s rights to the subject assign and extinguishes all of those rights in the assignor." Bozelko v. Milici, supra, 139 Conn.App. 539-40.
"[I]t is the assignee’s burden of proving the existence of the assignment." Aurora Loan Services, LLC v. Hirsch, Superior Court, judicial district of Waterbury, Docket No. CV 10 6008972 (June 28, 2013, Dooley, J.) (56 Conn.L.Rptr. 464).
In opposition, the plaintiff presented a copy of a Loan Sale Agreement between NC Ventures, Inc. and the plaintiff, dated as of March 30, 2005, selling "certain loans, judgments or evidence of debt ..." as described in Exhibit 1.2. Annexed thereto is a Schedule of Loans which lists a borrower number and the name "645 Poquonock Avenue Association."
Neither the judgment nor Zito are identified in the Loan Sale Agreement. This is not sufficient to show an assignment with such particularity as to render it capable of identification as applying to the 1997 judgment or to Zito. See Dysart Corp. v. Seaboard Sur. Co., supra, 240 Conn. 17.
Thus, the plaintiff has not presented evidence to show that it had standing when the action was commenced.
Since no evidence was presented as to the plaintiff’s other factual contentions, the court need not consider them. "It is axiomatic that arguments of counsel are not evidence." Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990). In addition, the plaintiff cites no decisional authority to support its arguments. A court is "not required to review issues that have been improperly presented ... through an inadequate brief." State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016).
Under these circumstances, the court need not address the parties’ other arguments, concerning the validity of the original assignment and subsequent assignments.
For the reasons set forth above, the defendant’s motion to dismiss is granted.