Izzo v. Quinn

170 Conn.App. 631

155 A.3d 315

Benedetto IZZO

v.Richard QUINN et al.

AC 37510

Appellate Court of Connecticut.

Submitted on briefs November 30, 2016

Officially released February 7, 2017

Albert J. Oneto IV and Peter E. Ricciardi, Hamden, field a brief for the appellants (defendants).

Patrice Noah filed a brief for the appellee (plaintiff).

DiPentima, C. J., and Mullins and Mihalakos, Js.

MULLINS, J.

The defendant, Richard Quinn,¹ appeals from the judgment of the trial court dismissing his four count counterclaim against the plaintiff, Benedetto Izzo, doing business as New Haven Drywall.² On appeal, the defendant claims that the court erred in dismissing his counterclaim on the ground that he had failed to join an indispensable or necessary party. We agree, and, accordingly, we reverse the judgment of the trial court.

The following undisputed facts and procedural history inform our decision. The plaintiff, acting under the name "Benedetto Izzo dba New Haven Drywall," filed a complaint with the Superior Court seeking to foreclose a mechanic's lien that had been filed against the defendant's property. The plaintiff alleged that he had filed the lien because the defendant had failed to pay sums due under a home improvement contract entered into between him and the defendant.

In response to the complaint, the defendant filed an answer, three special defenses and a four count counterclaim. In the special defenses, the defendant alleged: (1) he had contracted with North Haven Drywall, LLC, to restore his fire damaged residence, Benedetto Izzo had acted as the general contractor on that job, and the work was not performed in a workmanlike manner; (2) the mechanic's lien was not filed timely; and (3) the plaintiff lacked standing to enforce the mechanic's lien because the defendant had contracted with North Haven Drywall, LLC, not with the plaintiff.

In his four count counterclaim, the defendant alleged in relevant part: (1) the defendant had entered into a contract with North Haven Drywall, LLC, Izzo directed the work of North Haven Drywall, LLC, Izzo failed to complete the project and obtain a certificate of completion, and the work that was completed was not completed in a workmanlike manner in accordance with the contract; (2) North Haven Drywall, LLC, and Izzo made false representations to facilitate final payment from the mortgagee of the defendant's property, thereby engaging in conduct that was immoral, unethical and unscrupulous, in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110b et seq. ; (3) prior to the defendant's engagement of North Haven Drywall, LLC, and Izzo, North Haven Drywall, LLC, and Izzo publicly held themselves out to be fire and water damage restoration specialists when they, in fact, possessed no such special skills, and this conduct was immoral, unethical and unscrupulous, in violation of CUTPA; and (4) the defendant contracted with North Haven Drywall, LLC, which took possession of the defendant's property and began work under the direction of Izzo, Izzo owed a duty to the defendant, Izzo breached that duty in several enumerated ways, and those breaches caused the defendant to sustain damages and losses.

The plaintiff then sought to substitute "North Haven Drywall dba N.H.D." as the plaintiff in this action, and the defendant objected to the substitution on grounds including that the proposed substitute plaintiff had no legal standing as it was not the party that did the work or that filed the mechanic's lien. The defendant also filed a motion to dismiss the plaintiff's complaint for, inter alia, lack of standing,³ which the trial court granted without objection on March 31, 2014.

On March 11, 2014, the plaintiff filed a "motion to strike and/or dismiss the defendant's counterclaims," in which he alleged that the counterclaim, in actuality, was directed at North Haven Drywall, LLC, and not at the plaintiff. The defendant filed an objection in which he argued that the plaintiff's motion was improper because (1) it was not accompanied by a memorandum of law, in violation of Practice Book § 10–42, and (2) all four counts of his counterclaim are against the plaintiff individually and not against North Haven Drywall, LLC.

He also argued that a motion to dismiss was not the proper procedural vehicle for the alleged failure to join a necessary party because such a defect did not affect the court's subject matter jurisdiction.

On April 29, 2014, the court granted the plaintiff's motion without a written decision. On September 30, 2014, the defendant filed a request for leave to amend his counterclaim, and he filed a proposed amendment. The plaintiff objected on the ground that the counterclaim had been dismissed on April 29, 2014, and there was no pending case. The defendant, however, contended that it was not clear whether the court had dismissed or stricken the counterclaim, as no judgment of dismissal had been entered. On December 2, 2014, the court rendered a judgment of dismissal explaining that it previously had granted the plaintiff's motion to dismiss the four count counterclaim. This appeal followed.⁴

On appeal, the defendant claims that the court improperly dismissed his counterclaim for two reasons, namely, (1) that the court incorrectly ruled that all four of counts were directed solely at North Haven Drywall, LLC, and that North Haven Drywall, LLC, was a necessary or indispensable party to each count;⁵ and (2) that, even if the court correctly determined that North Haven Drywall, LLC, was a necessary party, the failure to join a necessary party is not jurisdictional, and the court, therefore, should have granted the plaintiff's motion to strike, rather than dismiss, the counterclaim, which would have given him an opportunity to replead. We agree that the court improperly dismissed the counterclaim on the ground that the defendant failed to join a necessary or indispensable party.⁶

"The standard of review for a court's decision on a motion to dismiss ... is well settled.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged....

"Trial courts addressing motions to dismiss for lack of subject matter jurisdiction ... may encounter different situations, depending on the status of the record in the case.... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.

"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint [or counterclaim] alone, it must consider the allegations ... in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint [or counterclaim], including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader....

"In contrast, if the complaint [or counterclaim] 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 [or counterclaim].... 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 ... motion to dismiss conclusively establish that jurisdiction is lacking, and the [nonmoving party] fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings.... If, however, the [moving party] submits either no proof to rebut the ... jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the [moving party] need not supply counteraffidavits or other evidence to support the complaint [or counterclaim], but may rest on the jurisdictional allegations therein." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Astoria Federal Mortgage Corp. v. Genesis Ltd. Partnership , 167 Conn.App. 183, 191–93, 143 A.3d 1121 (2016).

In the present case, the plaintiff filed a motion seeking either to dismiss or to strike the defendant's counterclaim on the ground that North Haven Drywall, LLC, was an indispensable or necessary party to each of the four counts alleged therein. The trial court determined that this was a matter of subject matter jurisdiction, and it granted the plaintiff's motion to dismiss. The court concluded that, because the defendant had alleged that he had contracted with North Haven Drywall, LLC, throughout each count of his counterclaim, and each count necessarily involved the LLC and/or the plaintiff acting as the manager or member of the LLC, the LLC was an indispensable party, and the court did not have subject matter jurisdiction over the counterclaim. We disagree with the court's conclusion.

"[T]he function of the motion to dismiss is different from that of the motion to strike. [The motion to dismiss] essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court.... [S]ee Practice Book § 10–31. By contrast, the motion to strike attacks the sufficiency of the pleadings. Practice Book § 10–39.... There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and...