Opinion
AANCV106002924S
10-18-2016
Jeanne F. Shuster v. Fountain Lake, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON THE MOTION TO DISMISS FILED BY THE DEFENDANT FOUNTAIN LAKE, LLC
Barry K. Stevens, J.
STATEMENT OF THE CASE
The plaintiff, Jeanne Shuster, filed her complaint against the defendants Fountain Lake, LLC (Fountain Lake), the City of Ansonia (city), and the Planning and Zoning Commission of the City of Ansonia (commission). The amended complaint (#154) makes the following allegations. The plaintiff owns a lot in a commercial subdivision known as Fountain Lake Commerce Park in Ansonia, Connecticut. Her husband, George Shuster, was the prior owner of this property. The plaintiff acquired title to the property in 2008 through George Shuster's estate after his death. The property does not have viable, public road access sufficient for development.
In 2006, the city revised a subdivision plan called the Fountain Lake Commerce Park Project Plan. This revised plan gave the plaintiff's property access to a public road via a " Project Plan Access Road." Also, in 2006, the city entered into a contract to sell a large lot of the commerce park, Lot 6, to the defendant Fountain Lake. Under the contract, Fountain Lake agreed to build a road into the park that permitted access to adjacent properties, including the plaintiff's property. Pursuant to this contract, Fountain Lake acquired title to Lot 6 in 2006.
The crux of the present controversy emanates from Fountain Lake's application for site plan approval submitted to the commission. This site plan application modified the Fountain Lake Project Plan and eliminated access to the public road from the plaintiff's property. The site plan was approved by the commission in August 2007. The amended complaint is in four counts. Count one is a quiet title action against the defendants seeking " a judgment determining the rights of the parties in and to Project Plan Access Road 'B' and settling the title thereto . . ." Count two is an inverse condemnation claim against the city and the planning commission for damages. Count three is against Fountain Lake and count four is against the city for violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § § 42-110b et seq. Count five is against the city and is characterized as an " application to lay out a highway pursuant to General Statutes § 13a-63."
In brief, the plaintiff claims that Fountain Lake's approved site plan eliminating the plaintiff's public road access violated various zoning statutes and regulations (Compl., ¶ ¶ 24-25), and was accomplished through nefarious relationships among the defendants. Specifically, the complaint alleges that Fountain Lake's site plan was approved only in order " to exact an exorbitant sum of money from the plaintiff as a condition to restoring the access. Pursuant to the [land development agreement between the city and Fountain Lake] the more money [Fountain Lake] could exact from the plaintiff the more money the city would receive." (Id., ¶ 40.) Fountain Lake " aided, abetted and cajoled officials, agents and employees of the City to breach their statutory and fiduciary duties to the plaintiff, the State of Connecticut and its citizens." (Id., ¶ 49.)
The amended complaint further alleges that it had been anticipated and intended that the plaintiff receive an easement over Fountain Lake's property in order to access Fountain Lake Road from her lot, " An easement in favor of the Shuster lot over Access Road 'B' is reasonably necessary for the use and normal enjoyment of the Shuster lot." (Compl., ¶ 29.) The removal of this access to Fountain Lake Road " prevents the development of the Shuster lot for commercial purposes altogether." (Id., ¶ 41.)
Pending before the court is Fountain Lake's motion to dismiss filed on May 31, 2016. The motion seeks to dismiss count one of the amended complaint, asserting a quiet title action, and count three, alleging violation of CUTPA. In support of the motion, the defendant filed an affidavit from Mark Fasano, the president of Fountain Lake. The plaintiff filed a memorandum in opposition on June 21, 2016. The court heard oral arguments on the motion on July 18, 2016. For the following reasons, the motion to dismiss is denied as to count one and is granted as to count three.
DISCUSSION
I
" [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). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " The grounds which may be asserted in [a motion to dismiss include] lack of jurisdiction over the subject matter . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " [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). 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.) MacDermid, Inc. v. Leonetti, supra, 626.
II
Fountain Lake argues that the counts of the amended complaint filed against it should be dismissed because these claims are moot. " Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties . . . Mootness presents a circumstance wherein the issue before the court has been resolved or has lost its significance because of a change in the condition of affairs between the parties." (Internal quotation marks omitted.) Wilcox v. Ferraina, 100 Conn.App. 541, 547, 920 A.2d 316 (2007). " A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists." (Internal quotation marks omitted.) Hallas v. Windsor, 212 Conn. 338, 347-48, 562 A.2d 499 (1989). " The test for determining mootness is not whether the [plaintiff] would ultimately be granted relief . . . The test, instead, is whether there is any practical relief this court can grant the [plaintiff]." (Internal quotation marks omitted.) In re Jeremy M., 100 Conn.App. 436, 441-42, 918 A.2d 944, cert. denied 282 Conn. 927, 926 A.2d 666 (2007).
In support of its motion, Fountain Lake relies on the following facts from Mark Fasano's affidavit. Consistent with the allegations of the amended complaint, Fasano indicates that after Fountain Lake purchased Lot 6, the commission approved Fountain Lake's site plan in 2007. Fasano admits that " [t]he site plan approval included a road onto Fountain Lake property, with no additional access road to the adjacent Shuster lot." Aff. of Mark Fasano, ¶ 6. Fasano further avers that for economic reasons the 2007 site plan was abandoned in 2008 " and the property was never developed in accordance with that approval." Id., ¶ 7. On November 25, 2014, the plans were changed and a new site plan was approved by the commission. Id., ¶ 8.
On the basis of these facts outlined in Fasano's affidavit, Fountain Lake argues that the plaintiff's claims are moot because the 2007 site plan forming the basis of her complaint was abandoned and replaced by another site plan approved in 2014. The problem with this argument is that Fountain Lake does not indicate that the new site plan provides the public road access as demanded by the plaintiff. Similarly, Fountain Lake has not indicated that it acknowledges or agrees to the public road access sought by the plaintiff. Indeed, as explained by Fountain Lake's counsel during oral argument, the new site plan does not provide for such access and Fountain Lake continues to maintain that the plaintiff is not entitled to an easement over its property for this purpose. Consequently, although the facts of the parties' dispute are altered, the controversy between them remains and the court cannot conclude that it cannot grant any practical relief to the plaintiff if her claims have merit. See generally, Hallas v. Windsor, supra, 212 Conn. 338. Thus, the Fountain Lake's motion to dismiss on the ground of mootness must be denied.
III
Fountain Lake also moves to dismiss the third count alleging a CUTPA violation on the ground that the plaintiff lacks standing to assert this claim. " It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he 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." (Internal quotation marks omitted.) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). " [W]hen 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 and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [which may be remedied]." (Internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 219, 764 A.2d 739 (2001).
To support its argument that the plaintiff lacks standing to maintain her CUTPA claim, Fountain Lake relies on the allegations of the amended complaint indicating that the acts on which the CUTPA claim is based all relate to the approval of the initial site plan in 2007 and the defendants' alleged wrongful conduct to acquire this approval. There is no dispute that at this time, the plaintiff's husband, George Shuster, was the owner of the " Shuster" property. The plaintiff acquired ownership of this property in 2008 after Mr. Shuster's death. Fountain Lake contends that the plaintiff's " status as successor owner does not confer standing on her to prosecute CUTPA violations for which George Shuster was the victim. The plaintiff cannot be found to have suffered any 'loss' because she inherited the Shuster Lot a year after the alleged misconduct and approval of the 2007 Site Plan." (Def.'s Mem., p. 7.) In response, the plaintiff insists that her CUTPA claim is not " derivative" because she had an " equitable" interest in the property before her husband's death. (Pl's Mem., p. 12.) According to the plaintiff, she is the " only person injured by the misconduct of [the defendants]" and her " damages will continue to accrue as long as she is denied access to her property." Id. The court agrees with the defendant.
General Statutes § 42-110g(a) provides in relevant part: " Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages." Legal standing sufficient to satisfy this statutory prerequisite to institute a CUTPA action involves consideration of concepts such as directness and remoteness, but not in a manner as broad as the plaintiff contends. See Ganim v. Smith & Wesson Corp., supra, 258 Conn. 348 (in evaluating the question of standing, the task of the court is to " determine whether the facts, as stated in the complaint and taken as true, demonstrate that the injuries, on one hand, are direct or, on the other hand, are indirect, remote or derivative"). As applied here, the simple questions are who was harmed when Fountain Lake committed the alleged wrongful acts and who thereby suffered an " ascertainable loss?" The person who suffered any such loss in 2007 was Mr. Shuster because he was the sole owner of the property at that time. For example, if the plaintiff had instituted a CUTPA action in 2007 before Mr. Shuster's death, a dismissal of the action would have been warranted because she would have been asserting claims that could only have been asserted by Mr. Shuster. Stated differently, the plaintiff did not experience a legally cognizable, individual or independent loss or injury for any alleged unfair or deceptive trade practices committed in 2007 regarding this property because she had no ownership interest in the property at that time.
The plaintiff claims that she had an " equitable interest" in the property in 2007 ostensibly based on her inheritance interests. This " interest, " however, is without any legal significance in this context because as the sole owner of the property, Mr. Shuster was free to transfer or bequeath the property in any way he desired. There is no authority to support the plaintiff's contention that a CUTPA claim either " runs with the land" or automatically passes to a decedent's beneficiaries. Despite the plaintiff's claim that the damages from the defendants' alleged wrongdoing are continuing, these damages, as to the plaintiff, are too indirect, remote and derivative to support a CUTPA claim. See generally, Ganim v. Smith & Wesson Corp., supra, 258 Conn. 349 (" While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences or wrongs to a controllable degree" [internal quotation marks omitted]).
Indeed, it appears that General Statutes § 52-599 is applicable here: " A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent." Under § 52-599, the executor or administrator of a decedent's estate, and not an heir or beneficiary, has standing to bring a cause of action arising during the lifetime of the decedent. See generally, Keogh v. Bridgeport, 187 Conn. 53, 58, 444 A.2d 225 (1982) (" We agree that a wrongful death action survives death and is maintainable by the administratrix or executrix of the deceased's estate, and not by his dependents"). The plaintiff does not assert any claim on the basis of § 52-599.
In regard to the plaintiff's CUTPA claim, Fountain Lake makes the alternative argument that this claim is moot because the plaintiff did not suffer any damages since the 2007 site plan was abandoned. In fact, however, this contention is qualitatively different from Fountain Lake's mootness argument because it more directly concerns the legal sufficiency of the plaintiff's substantive claims. Moreover, it is unclear on this record whether the defendants' conduct, if proven, would be associated with other expenses or damages recoverable under CUTPA. For example, under CUTPA, a plaintiff may be entitled to punitive damages, attorney fees and costs in the absence of a recovery of actual damages. In any event, the court need not definitively address or resolve these issues because of the court's dismissal of the plaintiff's CUTPA claim for lack of standing.
CONCLUSION
Therefore, for these reasons, the motion to dismiss filed by the defendant Fountain Lake is denied as to the first count of the amended complaint asserting a quiet title action and is granted as to the second count alleging a violation of CUTPA.
So ordered.