Opinion
FBTCV136038038
03-05-2016
Rajiv Sethi et al. v. Burhan Yagildere
UNPUBLISHED OPINION
Filed March 5, 2016
MEMORANDUM OF DECISION
Michael P. Kamp, J.
FACTS
On September 18, 2013, the plaintiffs, Balram Sethi (Balram) and Rajiv Sethi (Rajiv), filed the present action against the defendant, Bruhan Yagildere. The plaintiffs filed a revised complaint on January 15, 2014. The revised complaint contains three counts: (1) unjust enrichment, (2) civil theft, General Statutes § 52-564, and (3) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The plaintiffs allege the following pertinent facts in their revised complaint. Rajiv is Balram's son. The defendant was, and presented himself as, the owner and operator of a business known as Bereket Deli (the deli) located in Bridgeport, CT. In April of 2004, Balram and the defendant entered into an oral agreement for the sale of the deli at a purchase price of $200,000. The purchase was to include the deli name; the deli inventory; the deli case; a beer cooler; cash registers; an alarm and camera system; cash drawers; and a Western Union account, a Connecticut Lottery account, and an " APS" account (the accounts). Payments were to be made as follows: (a) $20,000 in cash in April of 2004; (b) $35,000 by check, and $10,000 in cash on May 14, 2004, at the time of the transfer of possession of the deli; (c) $5,000 in cash in June of 2004; and (d) $130,000 by promissory note with 5% interest that would be paid monthly by payments of $2,500, commencing on November 25, 2004, at which time the defendant would transfer ownership of the accounts from the defendant to Balram's other son, Deepak Sethi (Deepak). By the terms of the agreement, Balram was to take over the deli premises and its operation once an initial payment of $70,000 was made.
While the wording of the allegations in the revised complaint is somewhat confusing, the court construes the allegations to mean that the $70,000 initial payment was to consist of the sum of (a), (b), and (c).
Rajiv raised a substantial part of the initial payment from mortgage proceeds that he received. A check was drawn for $35,000 from the mortgage proceeds, and $10,000 in cash was taken, " and both were given to the [d]efendant in May [of] 2004 in addition to the $20,000 originally given by Rajiv and [Balr]am to the [d]efendant on behalf of the [p]laintiffs." Upon receiving the $65,000, the defendant turned over possession and control of the deli to Balram for Balram, Rajiv, and Deepak, but the accounts remained in the defendant's name. Subsequently, Balram made monthly rental payments to the defendant. In September of 2004, the defendant wrongfully evicted Balram from the deli premises, took over the deli business, and sold a part of the deli to another person shortly thereafter.
After being evicted, Balram filed suit against the defendant, and the trial court issued a number of findings in its 2009 decision. In particular, the court found that Balram was wrongfully evicted and that Rajiv paid the $70,000 to the defendant, and, thus, Balram was not the proper party to obtain the return of the $70,000. Thereafter, Rajiv brought a separate action against the defendant to recover the $70,000. The trial court found that Balram was a necessary party to the case and that Rajiv lacked standing, and, thus, the court lacked subject matter jurisdiction.
Balram " delivered the total of $70,000 to the [d]efendant, which payment was made for the benefit of, and on behalf of himself and his sons Deepak and Rajiv." However, the defendant has wrongfully retained the $70,000 since 2004.
On October 19, 2015, the defendant filed a motion to dismiss on the ground that the plaintiffs lack standing. The defendant submitted a memorandum of law and the following exhibits in support of his motion:
(1) Balram's complaint in Sethi v. Yagildere, Superior Court, judicial district of Fairfield, Docket No. CV-04-4003034-S (August 24, 2009, Arnold, J.), aff'd, 125 Conn.App. 902, 10 A.3d 52 (2010) (per curiam), cert. denied, 299 Conn. 929, 12 A.3d 570 (2011) (Sethi I); (2) Sethi I; (3) Sethi v. Yagildere, 125 Conn.App. 902, 10 A.3d 52 (2010); cert. denied, 299 Conn. 929, 12 A.3d 570 (2011); (4) Rajiv's amended complaint in Sethi v. Yagildere, Superior Court, judicial district of Fairfield, Docket No. CV-10-6005852-S (March 10, 2011, Levin, J.), rev'd, 136 Conn.App. 767, 47 A.3d 892 (2012), cert. denied, 307 Conn. 905, 53 A.3d 220 (2012) (Sethi II); (5) Rajiv's affidavit in opposition to the motion for summary judgment in Sethi II; (6) Sethi II; (7) Sethi v. Yagildere, 136 Conn.App. 767, 47 A.3d 892 (2012); and (8) the plaintiffs' revised complaint in the present case.
On November 11, 2015, the plaintiffs filed a memorandum of law in opposition to the defendant's motion to dismiss. The court heard oral argument on the motion on December 14, 2015.
DISCUSSION
" 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.) Stotler v. Dept. of Transportation, 313 Conn. 158, 166, 96 A.3d 527 (2014). " [A] trial court ruling on a motion to dismiss for lack of subject matter jurisdiction . . . may decide that motion on the basis of: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . .
" If the court decides the motion 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 [for example, contract documents] . . . 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." (Emphasis in original; internal quotation marks omitted.) Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265, 277-78, 105 A.3d 857 (2015).
" [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 . . . 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 Ins., 315 Conn. 196, 226, 105 A.3d 210 (2015).
The defendant argues that the court's findings in Sethi land the plaintiffs' revised complaint establish that Balram does not have standing. The defendant also argues that Rajiv's judicial admissions in Sethi II, which amounted to a concession that he was not the proper party to pursue the claim for the return of the $70,000 deposit, establish that he lacks standing. In opposition, the plaintiffs argue that (a) the trial court in Sethi I found that Balram did not have standing to claim the return of Rajiv's money, (b) the Appellate Court, upon review of Sethi II, concluded that Rajiv lacked standing for the specific reason that he had not pleaded a justiciable interest in the money but that Rajiv " could have pursued his claims under a theory that he paid the deposit, " and (c) the revised complaint in the instant suit corrects the pleading defect because Rajiv is now proceeding under a theory that he gave the money to the defendant through Balram, and Balram delivered payment to the defendant on behalf of himself and his sons.
" Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words, statutorily aggrieved, or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Isabella D. v. Dept. of Children & Families, 320 Conn. 215, 227, 128 A.3d 916 (2016).
As explained more fully below, the court concludes that Balram lacks standing and that Rajiv has standing. This determination is supported by a review of the trial court's findings and conclusions in Sethi I and Sethi II, particular case files from Sethi 11, the appellate determinations, and the plaintiffs' revised complaint in the present case.
" There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties . . . Notice to the parties is not always required when a court takes judicial notice . . . [C]ases have attempted to draw a line between matters susceptible of explanation or contradiction, of which notice should not be taken without giving the affected party an opportunity to be heard . . . and matters of established fact, the accuracy of which cannot be questioned, such as court files, which may be judicially noticed without affording a hearing." (Citation omitted; internal quotation marks omitted.) Wasson v. Wasson, 91 Conn.App. 149, 157, 881 A.2d 356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005).
In Sethi I, Balram was the lone plaintiff. After a court trial, the court determined that Balram had standing to bring a claim of unjust enrichment against the defendant for the wrongful eviction but awarded only nominal damages because Balram presented no evidence as to the value of the unlawfully seized property within the deli. As for the $70,000, the court found that Balram was not a party to any contract with the defendant and that Balram admitted that the $70,000 was not his money. Thus, the court did not consider the $70,000 when analyzing the merits of his unjust enrichment claim.
In a footnote, the Sethi I court states, in part, that " [t]he court has also found that the $70,000 deposit funds belonged to the plaintiff's son and not the plaintiff."
Moreover, as a part of its factual findings, the Sethi I court specifically found that " [o]n or before May 14, 2004, the plaintiff's son paid the defendant the sum of Seventy Thousand Dollars ($70,000) towards the purchase price for the business, utilizing the funds of the plaintiff's son, Rajiv Sethi. " (Emphasis added.). Though this language is somewhat confusing, the court likely meant that Balram paid $70,000 to the defendant towards the purchase price for the deli, utilizing Rajiv's funds. Such an interpretation reconciles the court's analysis of Balram's unjust enrichment claim and falls in line with the court's discussion of Balram's breach of contract claim, where the court states, in pertinent part, that " [t]he [p]laintiff testified that the money used to pay the [d]efendant came from his son, Rajiv Sethi, and Rajiv Sethi testified that it was his money. The [p]laintiff testified that he never signed any purchase and sale agreement, lease or promissory note. The [p]laintiff himself gave nothing of value to the [d]efendant toward the purchase of the deli, although he did partially pay for a portion of the cigarette inventory." (Emphasis added.). A reasonable interpretation of this language is that Balram used Rajiv's $70,000 to pay the defendant towards the purchase of the deli, and Balram did not provide the defendant with his own money, except for when he paid for a portion of the cigarette inventory. The Appellate Court affirmed Sethi I . See Sethi v. Yagildere, supra, 125 Conn.App. 902.
In Sethi II, Rajiv was the sole plaintiff, and the court issued a ruling granting the defendant's motion for summary judgment as to Rajiv's unjust enrichment claim and his CUTPA claim. Upon review of Rajiv's pleadings, the court concluded that " the plaintiff's father is the directly injured party who has standing to remedy the harm. There is no allegation that this [$70,000] was money that the plaintiff paid to the defendant with the plaintiff's father acting as the middleman or that the money was given to the defendant with the understanding that it needed to be returned to the plaintiff instead of the plaintiff's father in case the sale of the deli did not go through. No economic transaction occurred between the two parties." Thus, the court determined that Rajiv could not establish that he had superior equitable entitlement to the money that Balram allegedly supplied to the defendant.
The Appellate Court later agreed with the Sethi II court, determining that Rajiv had proceeded under a theory that the $70,000 deposit was paid by his father. See Sethi v. Yagildere, supra, 136 Conn.App. 771. In its discussion, the court stated: " Although the plaintiff could have pursued his claims under a theory that he paid the deposit, a factual allegation which would have been entirely consistent with the resolution of his father's case, it is abundantly clear that he is not doing so in the present case." Id., 772. This court recognizes that, after reviewing the pleadings that were before the trial court at that time in Sethi II, the Appellate Court determined that Rajiv had failed to adequately plead his case. However, this language suggests that Rajiv could pursue his claim for the $70,000 under a theory that he is the true owner of the $70,000 and paid the defendant with such funds on his own behalf.
The Appellate Court explained as follows: " In the present case, the plaintiff proceeds under a theory that the deposit was paid by his father. Indeed, the complaint contains an explicit allegation that the plaintiff's father, Balram Sethi, 'gave [the defendant] the sum of $70,000 as a deposit for the business [and] took over the operation of the business . . .' This allegation constitutes a judicial admission that the plaintiff's father, and not the plaintiff, paid the deposit . . . Moreover, in an affidavit filed in opposition to the defendant's motion for summary judgment, the plaintiff stated that 'I never had any contract with the [d]efendant and never paid anything to the [d]efendant.' Under such circumstances, the trial court was correct to conclude that the plaintiff did not have standing to allege a wrongful retention of the deposit." (Citation omitted; footnote omitted; internal quotation marks omitted.) Sethi v. Yagildere, supra, 136 Conn.App. 771-72.
The plaintiffs' revised complaint alleges that " Rajiv raised a substantial part of the initial payment from mortgage proceeds he received in the amount of $47,843.02, from which amount a check was drawn for $35,000 and $10,000 in cash was taken and both were given to the Defendant in May 2004 in addition to the $20,000 originally given by Rajiv and Ram through Ram to the defendant on behalf of the Plaintiffs." The revised complaint also alleges that " Ram delivered the total of $70,000 to the Defendant, which payment was made for the benefit of, and on behalf of himself and his sons Deepak and Rajiv." While Rajiv may have improperly pleaded his claims in Sethi II, in the present case, the plaintiffs properly allege that at least part of the $70,000 deposit is Rajiv's; that Rajiv gave the money to Balram for Balram to deliver to the defendant on behalf of himself, his father, and his brother, as payment towards the purchase price of the deli; that Balram did so deliver the money; and that the defendant continues to wrongfully retain the deposit. These allegations suggest that Balram was simply the deliveryman or middleman with respect to the $70,000 deposit.
Moreover, although the Appellate Court concluded that Rajiv's allegation that Balram gave [the defendant] the sum of $70,000 as a deposit for the business [and] took over the operation of the business" constituted a judicial admission that Balram, and not Rajiv, paid the deposit, this admission only has evidentiary value in the present case and does not change this court's determination in light of the records discussed. Based on the foregoing, the court concludes that Balram lacks standing to bring the present action and that Rajiv has standing.
See footnote 4.
" Judicial admissions are conclusive only in the judicial proceeding in which made. Perry v. Simpson Waterproof Mfg. Co., 40 Conn. 313, 317 (1873). In subsequent proceedings such prior judicial admissions are merely evidentiary admissions, to be used as evidence to prove a matter in dispute in the subsequent trial. Bredow v. Woll, 111 Conn. 261, 263-64, 149 A. 772 (1930); Fengar v. Brown, 57 Conn. 60, 64, 17 A. 321 (1889)." C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 8.16.3, p. 530.
CONCLUSION
The defendant's motion to dismiss as to the plaintiff Balram is granted. The motion to dismiss as to the plaintiff Rajiv is denied.