Emerick v. Town of Glastonbury

145 Conn.App. 122

74 A.3d 512

Roger EMERICK

v.TOWN OF GLASTONBURY.

No. 34208.

Appellate Court of Connecticut.

Argued Feb. 19, 2013.

Decided Aug. 20, 2013.

Roger Emerick, self-represented, the appellant (plaintiff).

Beth Bryan Critton, Hartford, for the appellee (defendant).

ALVORD, BEAR and PETERS, Js.

PER CURIAM.

The self-represented plaintiff, Roger Emerick, appeals from the judgment of the trial court dismissing his action against the defendant, the town of Glastonbury (town). The plaintiff sought to prevent the demolition of the former Slocomb Mill located on town property. On appeal, the plaintiff claims that the court (1) improperly granted the town's motion to dismiss the plaintiff's action on the ground of mootness, (2) improperly failed to award him punitive damages for the town's conduct in demolishing the mill while his action was pending, and (3) violated his due process rights by denying his ex parte motion for a temporary injunction to halt the demolition of the mill. The town claims that the plaintiff lacked standing to bring this action. We affirm the judgment of dismissal on the ground that the plaintiff lacked standing to bring this action, and, therefore, we do not reach the issues raised by the plaintiff in this appeal.

The following facts, as alleged in the complaint or as disclosed in the record as undisputed, are relevant to this appeal. The plaintiff owns property that abuts the former Slocomb Mill in Glastonbury. The town purchased the mill property in 2008 and intended to demolish various buildings and structures at the site. On November 3, 2010, the plaintiff commenced the present action seeking a writ of mandamus, and injunctive and declaratory relief, to restore and preserve the mill property. On March 18, 2011, the town filed its first motion to dismiss the plaintiff's complaint claiming that the issues were not ripe for adjudication.¹ Shortly thereafter, the town filed an amended motion to dismiss on April 4, 2011, claiming that (1) the plaintiff's action was premature and not ripe for adjudication and (2) the plaintiff lacked standing to bring the action. The plaintiff filed a memorandum in opposition to the town's amended motion to dismiss on April 15, 2011.

The court held a hearing on the town's amended motion to dismiss on May 9, 2011. At that time, counsel for the town presented the court with reasons as to why the plaintiff lacked standing to challenge the town's actions with respect to the mill property. Counsel also stated that the matter was not ripe for adjudication because the process for obtaining the requisite permits for demolition had not been completed. The court then told the plaintiff that although the amended motion to dismiss had been filed by the town, it was the plaintiff's burden to demonstrate that the court had subject matter jurisdiction over the action.² The plaintiff responded: “I would like you to read the complaint, verified complaint, my opposing memorandum and affidavits, and what I've written in its entirety ... because it addresses specifically all the points opposing counsel have brought up in court.” The court took the matter on the papers.

Before the court issued a ruling on the town's April 4, 2011 amended motion to dismiss, the town filed a third motion to dismiss on June 24, 2011. In that motion, the town claimed that the court lacked subject matter jurisdiction over the action because the plaintiff failed to exhaust his administrative remedies. In its memorandum in support of the motion, the town represented that on May 26, 2011, the Conservation Commission had approved the town's application for inland wetlands approval in connection with the demolition project and that the plaintiff had not appealed from that decision. The plaintiff filed a memorandum in opposition to the town's third motion to dismiss on August 1, 2011.

On September 27, 2011, the town filed its fourth motion to dismiss. At that time, no court decisions had been made with respect to the town's prior motions to dismiss. In this fourth motion, the town claimed that the court lacked subject matter jurisdiction over the plaintiff's action because (1) the plaintiff failed to exhaust his administrative remedies and (2) events had occurred since the filing of the plaintiff's complaint that rendered the matter moot. The plaintiff filed a memorandum in opposition to the town's fourth motion to dismiss on November 4, 2011.

On November 21, 2011, the court held a hearing on the September 27, 2011 motion to dismiss. The court began the hearing by referring to all of the pleadings that the parties had filed subsequent to the May 9, 2011 hearing on the town's April 4, 2011 amended motion to dismiss, and then asked the parties: “It's just like it's a moving target and I'd like to know what—exactly what it is that you're asking me to decide.” The town's counsel responded that the ripeness claim was no longer being asserted because the inland wetlands approval and the demolition application process had been completed. Counsel indicated that the town still was pursuing the plaintiff's failure to exhaust administrative remedies and the plaintiff's lack of standing as grounds for dismissal. Counsel also stated that an additional ground for dismissal, that of mootness, now was applicable because of subsequent events that had occurred.

The court addressed the plaintiff: “So are you satisfied that you filed everything you wished to file on—as to each of these claims? And right now the claims are standing and mootness.” The plaintiff responded: “Yes, Your Honor.” After the court indicated that it would take the matter on the papers, the plaintiff inquired: “May I talk?” When the court answered in the affirmative, the plaintiff voiced his frustration over the fact that his previous applications for a temporary injunction had been denied by the court. He stated that his action was intended to preserve the mill and that the mill already had been demolished. Although the court was aware that much of the procedure for securing the demolition of the mill had been completed, it did not know until that moment that the mill had been torn down.³ The court confirmed with the parties that the actual demolition had commenced on October 18, 2011, and was substantially completed. The court told the parties that it would address the motion to dismiss as quickly as possible because “it does look like there's nothing much left of the lawsuit at this point and that it should be dismissed for either [standing or mootness] reason....”

On November 22, 2011, the court rendered a judgment of dismissal on the ground of mootness. In its notice to the parties, the court stated that the mill had been substantially demolished on October 18, 2011, and that there was no practical relief that the court could afford the plaintiff.⁴ On December 9, 2011, pursuant to Practice Book § 11–11, the plaintiff filed a motion to reargue the granting of the motion to dismiss. The court denied the plaintiff's motion on December 23, 2011, and this appeal followed.

“A motion to dismiss [for lack of standing] ... 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.... [O]ur review of the trial court's ultimate legal conclusion and resulting grant of the motion to dismiss [is] de novo.” (Internal quotation marks omitted.) West Hartford v. Murtha Cullina, LLP, 85 Conn.App. 15, 20–21, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.... 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.) R.F. Daddario & Sons, Inc. v. Shelansky, 123 Conn.App. 725, 731, 3 A.3d 957 (2010).

“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 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 ordinarily held to have been 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. Such a personal stake in the outcome of the controversy ... provides the requisite assurance of concrete adverseness and diligent advocacy.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003).

We begin with well settled principles regarding standing and its aggrievement component. “Two broad yet distinct categories of aggrievement exist, classical and statutory.... Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share.... Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.” (Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008).⁵ “Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement,...