Opinion
No. 7220
October 10, 2006
MEMORANDUM OF DECISION MOTION TO DISMISS
I. STATEMENT OF THE CASE
This is an action seeking specific performance of a contract. The defendant has now moved to dismiss the second revised complaint, dated January 31, 2006. The relevant procedural history is as follows.
On November 16, 2004, the plaintiff filed a complaint seeking a declaratory judgment and alleging unjust enrichment. On January 14, 2005, the defendant moved to strike the complaint. The motion to strike was granted on April 8, 2005. On April 21, 2005, the plaintiff filed a first revised complaint seeking specific performance of a contract. On or about June 9, 2005, the defendant moved to dismiss the first revised complaint on the grounds that the court lacked subject matter jurisdiction over this matter, to wit:
1. Since the plaintiff (David Pelletier) is not a party to the lease agreement whereby the option to purchase was created, the plaintiff (Pelletier) lacks standing upon which to bring a claim for an alleged breach of such contract; and/or
2. Even if the plaintiff (Pelletier) were deemed to have standing to enforce the terms of the lease agreement, the instant action is not ripe for adjudication, because no breach of the agreement has occurred.
On July 5, 2005, the plaintiff moved to substitute Simsbury Tire Auto Center, Inc., hereinafter ("Simsbury Tire"), as the plaintiff in this case. On October 27, 2005, Judge dos Santos denied the motion to dismiss and granted the motion to substitute party plaintiff.
On January 31, 2006, Simsbury Tire filed a second revised complaint to reflect its status as a substitute plaintiff seeking specific performance of a contract. On March 29, 2006, the defendant moved to dismiss the second revised complaint on the grounds that the court lacks subject matter jurisdiction based on standing and ripeness, to wit:
1. The substituted plaintiff, Simsbury Tire, lacks standing to pursue this action, because it is not aggrieved by the fact that the defendant has not sold the property to a third party; and/or
2. Even if the plaintiff (Simsbury Tire) were otherwise aggrieved, the instant action is not ripe for adjudication, because no breach of the agreement has occurred.
The plaintiff argues that the motion to dismiss must be denied based on the law of the case doctrine and the existence of disputed issues of fact.
II. DISCUSSION A Motion to Discuss
The defendant moves to dismiss this matter based on the lack of subject matter jurisdiction. Practice Book Sec. 10-31(a) states in relevant part: "a motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, . . ."
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "Although the filing of an appearance of behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, '[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance' Practice Book § 10-30." Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). Nevertheless, "a challenge to the jurisdiction of a court to render a judgment may be raised at any time, because the lack of subject matter jurisdiction cannot be waived." (Internal quotation marks omitted.) DiBerardino v. DiBerardino, 213 Conn. 373, 377, 568 A.2d 431 (1990).
At the outset, this court notes that while the present motion to dismiss was not filed within thirty days of the defendant's appearance, the motion is still timely. Practice Book § 10-33 provides, in relevant part: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Both standing and ripeness implicate subject matter jurisdiction. See Stamford Hospital v. Vega, 236 Conn. 646, 650, 674 A.2d 821 (1996); State v. Campbell, 84 Conn.App. 648, 650, 854 A.2d 813, cert. denied, 271 Conn. 940, 861 A.2d 515 (2004).
"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, 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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211; Filippi v. Sullivan, supra, 273 Conn. 8; Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike." (Citation omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). In this case, the plaintiff seeks specific performance of a contract. "[A]n action for specific performance of a contract to sell real estate is an equitable action and is to be determined by equitable principles . . . The granting of specific performance of a contract to sell land is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity." (Citations omitted.) Frumento v. Mezzanotte, 192 Conn. 606, 615, 473 A.2d 1193 (1984).
"It is settled law, however, that in an action for specific performance the plaintiff has the burden of proving all of the essential elements of his cause of action and the burden is primarily on him to show his right in equity and good conscience to the relief sought." Cutter Development Corp. v. Peluso, 212 Conn. 107, 114-15, 561 A.2d 926 (1989).
As to the elements of a claim for specific performance, "[w]hen the specific performance of a contract is sought to be enforced, courts of equity will look to the substance of the transaction, to the purpose of the agreement and the real understanding of the parties, whether expressed in the written contract or not, and will never decree the specific performance of a contract when its enforcement will defeat the primary object of the agreement and the real understanding of the parties." Clowes v. Miller, 74 Conn. 287, 95, 50 A. 728 (1901).
"[T]he primary purpose of a decree of specific performance, which is always an equitable remedy, is to place an injured [party] in a position that replicates, as nearly as possible, that which it would have enjoyed but for the [other party's] unexcused breach." State v. Lex Associates, 248 Conn. 612, 631, 730 A.2d 38 (1999). Thus, "[i]n framing an order of specific performance . . . the trial court can mold it to do justice as fully as is practicable." (Internal quotation marks omitted.) Alcoa Composites v. BTI Technology, Superior Court, judicial district of Middlesex, Docket No. CV00 00928, (September 11, 2003, Wolven, J.) ( 2003 Ct.Sup. 10749, 10753) ( 35 Conn. L. Rptr. 646).
B Law of the Case Doctrine
The plaintiff objects to the motion to dismiss based on the law of the case doctrine.
"The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstances." (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).
"Underlying the law of the case doctrine is the view that [a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge . . ." (Citation omitted; internal quotation marks omitted.) Wasko v. Manella, 87 Conn.App. 390, 395, 865 A.2d 1223 (2005). Nevertheless, "[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision." (Internal quotation marks omitted.) Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 741, 867 A.2d 851 (2005).
On June 9, 2005, the defendant moved to dismiss the first revised complaint on the grounds that the plaintiff (David Pelletier) lacks standing because he is not a party to the lease agreement, and/or the action is not ripe for adjudication because no breach of the agreement has occurred.
On October 27, 2005, Judge dos Santos denied the defendant's first motion to dismiss. The court held in relevant part: "The motion to dismiss is not the proper vehicle to terminate this litigation. In paragraph 1 of the motion to dismiss, the defendant alleges that the plaintiff is not a proper party to the lease agreement. In essence, the defendant is attacking the sufficiency of the complaint because of the absence of a necessary party. Practice Book Section 10-39(3). In paragraph 2 of the motion to dismiss, the defendant alleges that this matter is not ripe for adjudication. This is not a proper ground to dismiss this action. The motion to dismiss is denied. The motion to substitute party plaintiff is granted. The action was commenced through mistake by the plaintiff and it is necessary to substitute the plaintiff to determine this disputed matter. Practice Book Section 9-20." Pelletier v. Sansone, Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 7220 (October 27, 2005, dos Santos, J.).
On January 31, 2006, the defendant moved to dismiss the second revised complaint on the grounds that the substitute plaintiff (Simsbury Tire) lacks standing, and/or the action is not ripe for adjudication because no breach of the agreement has occurred.
The instant motion to dismiss basically restates the same grounds for dismissal. The motion now relates to the substituted plaintiff, Simsbury Tire, that the court has already determined is proper plaintiff in this case. Pelletier v. Sansone, supra. Since these issues have been previously ruled upon, this court may treat Judge dos Santos' decision as the law of the case. Nevertheless, the court will address the defendant's arguments in support of his motion to dismiss
C Standing
The defendant moves to dismiss the second revised complaint on the ground that the substitute plaintiff, Simsbury Tire, lacks standing to pursue this action because it is not aggrieved by the fact that the defendant has not sold the property to a third party.
"Jurisdiction is the power in a court to hear and determine the cause of action presented to it. Jurisdiction must exist in three particulars: the subject matter of the case, the parties, and the process." (Citations omitted; internal quotation marks omitted.) LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976). "Standing goes to the court's subject matter jurisdiction." (Citation omitted.) Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987).
"Standing is the legal right to set the judicial process 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 the action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable 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 met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Standing focuses on whether a party is a proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties." (Citations omitted; internal quotation marks omitted.) Investors Mortgage Co. v. Rodia, 31 Conn.App. 476,479, 625 A.2d 833 (1993).
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "[S]tanding does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief." (Citations omitted; internal quotation marks omitted.) Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn.App. 632, 638, 803 A.2d 402 (2002). "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." (Citations omitted; internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 25, 901 A.2d 649 (2006).
In the present case, the defendant argues that Simsbury Tire lacks standing because it is not aggrieved by the defendant's refusal to sell the property to Pelletier. The plaintiff counters that as the Tenant of the property, it had a contractual right to exercise an option to purchase the property. The plaintiff further argues that the defendant repudiated the agreement set forth in the lease and would not convey the property to the plaintiff after the plaintiff exercised the option to purchase.
"A lease is a contract." Ingalls v. Roger Smith Hotels Corp., 143 Conn. 1, 6, 118 A.2d 463 (1955). "It is axiomatic that an action upon a contract or for breach of a contract can be brought and maintained by one who is a party to the contract sued upon . . ." (Internal quotation marks omitted.) Cottman Transmissions Systems, Inc. v. Hocap Corp., supra, 71 Conn.App. 639.
Simsbury Tire is a corporation, and Pelletier is its president. The lease agreement was signed by Pelletier in his capacity as Simsbury Tire's president, and refers to Simsbury Tire as the Tenant. "[I]t is well settled . . . that a corporation is a distinct legal entity that can act only through its agents." (Internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 263 Conn. 378, 385, 819 A.2d 795 (2003). As such, Pelletier could only enter into the lease agreement on behalf of the corporation rather than in his individual capacity. See Verrastro v. Auerbach, Superior Court, judicial district of Waterbury, Docket No. CV 0119578 (April 4, 1996, Kulawiz, J.) (16 Conn. L. Rtpr. 406). Pelletier, therefore, is not in privity with the defendant, and would be unable to exercise the option to purchase in his individual capacity. Pelletier, as president, is only the guarantor of the lease obligations. Simsbury Tire, through its president, has attempted to exercise the option in paragraph 5 of the lease agreement to purchase the property. Pelletier has acted in his capacity as president in exercising the option. Only the Tenant, Simsbury Tire, has the option to purchase.
The court has previously recognized that Simsbury Tire is the proper plaintiff in this action, noting that "[t]he action was commenced through mistake by the plaintiff and it is necessary to substitute [Simsbury Tire] to determine this disputed matter." Pelletier v. Sansone, Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 7220 (October 27, 2005). The specific, personal, and legal interest in this case belongs to the party to the contract — the plaintiff, Simsbury Tire. See Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., 77 Conn.App. 578, 582, 823 A.2d 1271 (2003). "Thus, the plaintiff has alleged a legal interest, and harm to that interest . . . the plaintiff has standing to maintain the present action . . ." Cottman Transmissions Systems, Inc. v. Hocap Corp., supra, 71 Conn.App. 640. Simsbury Tire is entitled to seek the relief requested. The plaintiff has satisfied the test for classical aggrievement.
Construing the facts most favorably to the plaintiff, this court concludes that Simsbury Tire has standing to maintain this action for specific performance.
D Ripeness
The defendant next moves to dismiss the case on the ground that the action is not ripe for adjudication.
"It is well settled that our courts may not render advisory opinions . . . Such an opinion is one of advice and not of judgment as there are no parties whose rights are adjudicated, and it is not binding on anyone . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . . The general rule is that a case is justiciable if it is capable of resolution on the merits by judicial action . . . The justiciability of a claim is related to its ripeness. The basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . The problem is best seen in a twofold aspect, requiring [the court] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration . . . [W]e will decide a case only when it presents a live controversy which can be resolved by relief that is within the court's power to grant." (Citations omitted; internal quotation marks omitted.) Forcier v. Sunnydale Developers, LLC, 84 Conn.App. 858, 865, 856 A.2d 416 (2004). "If an issue is not yet ripe for adjudication, [the] court lacks subject matter jurisdiction to afford it consideration." State v. Campbell, supra, 84 Conn.App. 650.
The defendant argues that the present case is not ripe for adjudication because no breach of the agreement has occurred. The plaintiff counters that this matter is ripe because the defendant repudiated the agreement in violation of the lease's option to purchase provision. The plaintiff has alleged that the lease's option to purchase provision provided that, after Simsbury Tire exercised its option to purchase the premises, closing must take place within 120 days following written notice. The option to purchase provision also provided that the sales price of the premises would be determined by a fair market appraisal of the premises, but would not be less than $600,000. The plaintiff has alleged that the estimated fair market appraisal of the premises was $330,000, thereby setting the purchase price at $600,000. The plaintiff also alleged that it agreed to pay the $600,000 base price subject to customary adjustments, and that the defendant has refused to convey the property to the plaintiff in accordance with the lease's option to purchase provision.
According to the complaint, the plaintiff exercised the option to purchase on April 2, 2003. Given the 120-day deadline imposed by the lease, closing should have taken place no later than August 1, 2003. The case before this court is neither hypothetical nor can it properly be characterized as an abstract disagreement. The lease is still in effect, and the plaintiff argues that, since exercising its option to purchase, it has paid the defendant more than $150,000 in rent, causing financial detriment.
The instant claim for specific performance presents a live controversy that can be resolved by relief this court may grant. "When the specific performance of a contract is sought to be enforced, courts of equity will look to the substance of the transaction, to the purpose of the agreement and the real understanding of the parties, whether expressed in the written contract or not, and will never decree the specific performance of a contract when its enforcement will defeat the primary object of the agreement and the real understanding of the parties." Clowes v. Miller, supra, 74 Conn. 287, 95. The plaintiff's claim for specific performance is justiciable: (1) There is an actual controversy between or among the parties to the dispute regarding the option to purchase; (2) The interests of the parties are adverse; (3) The matter is capable of being adjudicated by the court; and (4) The determination of the controversy may result in practical relief to the plaintiff through specific performance. See Forcier v. Sunnydale Developers, LLC, 84 Conn.App. 865. This issue is ripe for adjudication. Construed in a manner most favorable to the plaintiff, the allegations set forth in the complaint present a live controversy fit for judicial decision.
III CONCLUSION AND ORDER
For the above-stated reasons, the motion to dismiss is denied.