York Hill Trap Rock Quarry Co. v. Douglas Flemming, LLC

York Hill Trap Rock Quarry Company v. Douglas Flemming, LLC et al

No. CV165036915S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

June 20, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO DISSOLVE PREJUDGMENT REMEDY (#113)

Robin L. Wilson, J.

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, York Hill Trap Rock Quarry Company (plaintiff) filed an Application for Prejudgment Remedy in connection with a proposed Complaint in two counts against Douglas P Fleming, LLC and Douglas P. Fleming seeking to collect for unpaid building materials sold and delivered to Douglas P Fleming, LLC. The first count is based on breach of contract and the second count is based on quantum meruit. In addition, each count seeks to hold Douglas P. Fleming liable under his written guaranty to the plaintiff for the indebtedness of Douglas P. Fleming, LLC.

The plaintiff claims that on or about July 22, 2015, through and including August 28, 2015, it sold and delivered to Douglas P. Fleming, LLC building materials with an outstanding balance of $15, 322.80. The plaintiff further claims that Douglas P. Fleming, LLC promised to pay the plaintiff, for the building materials sold, a reasonable price, interest on past due balances at the rate of 18%, costs of collection and a reasonable attorneys fee per a signed Credit Agreement, and that Douglas P. Fleming personally guaranteed the indebtedness of Douglas P. Fleming, LLC to the plaintiff pursuant to a signed Credit Agreement.

Lastly, the plaintiff claims that Douglas P. Fleming, LLC and Douglas P. Fleming have neglected and refused to pay for said building materials. The plaintiff filed an application for a prejudgment remedy to protect any judgment that may be rendered in its favor, in the amount of $26, 500.00. An evidentiary hearing on the plaintiff's application was held on October 12, 2016, to which the defendants failed to appear. On October 12, 2016, after the evidentiary hearing, the court (Abrams, J.), granted the application and ordered that " the plaintiff may attach to the value of $26, 317.58 the goods or estate of either or both defendants." (Docket Entry No. 100.37.)

On January 6, 2017, the self-represented party, Douglas P. Fleming filed a motion to dissolve the PJR on grounds that, 1) the court granted the PJR without the defendants present, allowing the plaintiff to attach the property of either or both in the amount of $26, 317.58; 2) there is an action pending between the parties to this one captioned Fleming v. Suzio Sand and Gravel et al., Superior Court, judicial district of New Haven, Docket No. CV-16-5006708-S, where damages are sought against the plaintiff in this action in excess of $100, 000; 3) The plaintiff attached the property of defendant, Douglas P. Fleming, individually, however, the defendant is an improper party to this action; ^[1] 4) pursuant to General Statutes § 52-278k, the court should dissolve the PJR; 5) the defendant raised for the first time at the hearing that he posted a bond for materials in performance of the project and that the plaintiff not only knew the bond existed, but it had a copy of said bond prior to seeking a PJR, and in fact has made a claim on the bond; and 6) the plaintiff failed to disclose to the court at the initial PJR hearing that it in fact had a bond that would pay any claim and that the plaintiff had in fact filed a claim.

In addition to the above stated grounds in support of the motion to dissolve, the defendant also argues that the court who granted the PJR lacked subject matter jurisdiction on two grounds.^[2] First, (1) the plaintiff's application contains a customer printout maintaining that the amount owed was to the L. Suzio Construction Company (see 100.31), not York Hill Trap Rock Quarry Company, and therefore the plaintiff lacked standing. Second, General Statutes: " § 52-278 requires that a plaintiff 'serve and return to court the writ, summons and complaint within thirty days thereof of a prejudgment remedy after the court grants it. The record reflects that the prejudgment remedy was granted October 12, 2016 (Entry #100.37) but was not actually returned until November 14, 2016 (entry 106.00). The failure to return the Complaint within 30 days commands that . . . the court shall dismiss the prejudgment remedy . . .' and by extension, this action." (Def. Mot. to Dismiss, Docket Entry No. 148.) The motion to dissolve the PJR was heard on March 28, 2017 and April 3, 2017. The parties were ordered to submit post-trial briefs on or before May 3, 2017.

DISCUSSION

I

Subject Matter Jurisdiction

A Standing

The defendant moves to dissolve the PJR on grounds that the court that granted the PJR lacked subject matter jurisdiction over PJR because the plaintiff lacked standing. Practice Book § 10-31 provides that a motion to dismiss may assert lack of subject matter jurisdiction. " A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App 238, 242, 789 A.2d 1142 (2002). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellaman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). " [T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) Webster Bank v Zak, 259 Conn. 766, 774, 792 A.2d 66, cert. denied, 261 Conn. 938, 808 A.2d 1135 (2002).

" Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . In other words, [s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . It is well established that, in determining whether a court has subject matter jurisdiction every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334-35, 857 A.2d 348 (2004).

" Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] 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 matters of the controversy." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 567-68, 775 A.2d 284 (2001). " When 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 . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., at 568, 775 A.2d 284. " Standing is established by showing that the party . . . 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]." Cimmino v. Household Realty Corp., 104 Conn.App. 392, 395, 933 A.2d 1226 (2007), cert. denied, 285 Conn. 912, 943 A.2d 470 (2008).

" 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), superseded by statute on other grounds as recognized by Flanagan v. Blumenthal, 100 Conn.App. 255, 260, 917 A.2d 1047 (2007). " [I]t is the burden of the party who seeks exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . ." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).

The defendant claims that the plaintiff lacked standing at the time the PJR was granted because the plaintiff's affidavit submitted in support of the application for the PJR relied exclusively upon a customer printout that was attached to the affidavit. The defendant claims that although the credit application, which was signed by the defendant Fleming on behalf of the LLC, and as a guarantor, names three companies, the plaintiff, York Hill, the L. Suzio Asphalt Company, Inc. and the El Suzio Concrete Company, Inc., the customer printout indicates that the account belonged to the " The L. Suzio Company, Inc." which is none of the entities named in the credit application. The defendant therefore claims that the court lacked subject matter jurisdiction at the time it granted the PJR because the plaintiff lacked standing and therefore, the motion to dissolve should be granted.

In its proposed complaint attached to the PJR application, the plaintiff alleges that on or about July 22, 2015, through...