Summary
In Apex Power Sports, LLC v. Scarpa, 2016 WL 888397 *1 (Conn.Super. 2016) (Lager, J.), Judge Lager faced a similar fact situation in which a 50% member of a limited liability company was found to lack standing to pursue the company’s claims against the other 50% member.
Summary of this case from AAA Advantage Carting & Demolition Service, LLC v. CaponeOpinion
CV156057909S
02-11-2016
Apex Power Sports, LLC v. Paul Scarpa
UNPUBLISHED OPINION
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#105)
Linda K. Lager, J.
By way of a writ of summons and complaint dated October 1, 2015, and filed with the court on October 20, 2015, Apex Power Sports, LLC (Apex) brought this suit against Paul Scarpa (Scarpa) in two counts. On December 10, 2015, Scarpa filed a motion for summary judgment asserting, alternatively, that both counts are barred by the applicable statutes of limitations and the preclusive effect of the court's dismissal of a prior action captioned Hender v. Scarpa, Superior Court, Judicial District of New Haven, docket no. CV14-6046768 ( Hender action). In its objection to this motion (entry #109), Apex relies on the provisions of General Statutes § 52-592 to avoid the application of the statutes of limitation and claims that the prior action was not preclusive.
" General Statutes § 52-592(a) . . . allows a plaintiff to bring an action that otherwise would be barred by an applicable statute of limitations . . . if the 'original action' has failed to be tried on the merits for any of several reasons enumerated in the statute, and if the original action was for the same cause as the later action." Peabody N.E., Inc. v. Department of Transportation, 250 Conn. 105, 106-07, 735 A.2d 782 (1999). Here, Apex claims that the Hender action was the original action, that it was brought within the applicable statutes of limitation and was dismissed for lack of subject matter jurisdiction, bringing this action within one of the enumerated exceptions of § 52-592(a) since it was filed within one year of the dismissal of the Hender action. See Pintavalle v. Valkanos, 216 Conn. 412, 418, 581 A.2d 1050 (1990).
General Statutes § 52-592(a) provides, in pertinent part: " If any action, commenced within the time period limited by law, has failed . . . to be tried on its merits . . . because the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
Successful reliance on § 52-292(a) requires identity of parties, Isaac v. Mount Sinai Hospital, 210 Conn. 721, 557 A.2d 116 (1989); Contadini v. DeVito, 71 Conn.App. 697, 803 A.2d 423, cert. denied, 262 Conn. 918, 812 A.2d 862 (2002), and identity of causes of action. See Peabody N.E., Inc. v. Department of Transportation, supra, 250 Conn. 117-18. Both prerequisites must be met. Determination of these issues requires consideration of the Hender action.
The Hender action was dismissed for lack of subject matter jurisdiction. It is not necessary to review the complicated procedural history of that action, which is set forth in detail in the court's memorandum of decision at entry #113. Simply put, Richard Hender, as an individual, brought a single-count complaint against Paul Scarpa alleging that both he and Scarpa were 50% members of Apex Power Sports, LLC and claiming that, as a member of Apex, Scarpa had committed civil theft, violated Apex's operating agreement and violated his fiduciary duty to Apex. As all these claims belonged to Apex, and not Hender, the court (Wilson, J.) concluded that he did " not have standing to proceed as an individual." (Hender action, entry #113, p. 8.) The court refused to substitute Apex as a party plaintiff concluding that Hender's " belief that he was the proper plaintiff was not the result of an 'honest mistake, ' as is required by [General Statutes] § 52-109." (Id., pp. 6-7.)
This conclusion followed a lengthy discussion of Hender's position that he honestly believed he could bring the action as an individual because Apex had been dissolved and that he was winding down its affairs. This discussion apparently provides the basis for Scarpa's res judicata claim which is brought as the second ground in support of this motion for summary judgment. In the Hender action, the court was deciding whether to exercise its discretion to substitute a party under § 52-109 not whether there was sufficient identity of the parties for the purposes of § 52-592(a). Apex did not have an opportunity to fully litigate the latter issue in the Hender action and the court's discussion there does not preclude the claim in this case.
In this case, the identity of the parties presents a question of fact. In Isaac v. Mount Sinai Hospital, supra, 210 Conn. 733, the Supreme Court concluded " that total identity of plaintiffs is not a prerequisite to the application of the statute." Section 52-592(a) may apply if the change in parties " is merely nominal or the interest represented in the renewed action is identical with that in the original action." (Citation omitted; internal quotation marks omitted.) The controlling determinations are " the essence" of the original plaintiff's status and the interest that the original plaintiff represented. Id.
This is a case where the court cannot determine whether the identity of parties, which is one prerequisite to the remedial application of § 52-592, is satisfied because there is a factual vacuum. See Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998). In bringing this action, Apex did not plead reliance on the § 52-592 and only raised the statute in its objection to Scarpa's motion for summary judgment thus depriving Scarpa of the ability, in his moving papers, of presenting evidentiary facts, or substantial evidence outside the pleadings, to show the absence of any material dispute on this issue. Consequently, the court must find that there is a genuine factual issue as to the identity of parties which precludes summary judgment, at least with respect to count one of the complaint.
While it is not a requirement to " plead sufficient facts necessary to bring the matter within the purview of § 52-592, either by anticipation in the complaint or in the reply to a defense of the Statute of Limitations, " Ross Realty Corp. v. Surkis, 163 Conn. 388, 392, 311 A.2d 74 (1972), that would have been the better practice.
Going forward, Apex bears the burden to establish the factual basis of its claim that it is the same plaintiff as in the original action to avail itself of the benefit of General Statutes § 52-592. Ruddock v. Burrowes, 243 Conn. 569, 577, 706 A.2d 967 (1998). The rationale of Ruddock applies " to cases beyond the disciplinary context." Santorso v. Bristol Hospital, 308 Conn. 338, 357, 63 A.3d 940 (2013).
A different conclusion applies to the second count of this complaint because, as a matter of law, it alleges a different cause of action from the one set forth in the single-count complaint in the Hender action. A cause of action is defined in Connecticut as a " single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action." (Citations omitted; internal quotation marks omitted.) Sharp v. Mitchell, 209 Conn. 59, 71, 546 A.2d 846 (1988).
The court must compare the complaint in this case with the complaint in the Hender action. Peabody N.E., Inc. v. Department of Transportation, supra, 250 Conn. 118. Apex's allegation in the second count that Scarpa committed civil theft as its employee at the relevant time is premised on entirely different facts from Hender' s allegations in the Hender action that Scarpa was acting as a member of the limited liability corporation. It " presents a new and different factual situation that would require the presentation of different evidence, " Sherman v. Ronco, 294 Conn. 548, 556, 985 A.2d 1042 (2010), and changes the actionable occurrence from breach of fiduciary and other duties as a member of the LLC to civil theft as an individual employee. While there may be a " superficial resemblance" between the two complaints, the " mere fact that the new . . . allegations arose in connection with [the same event] is not sufficient to bring those allegations within the scope of the . . . original complaint." (Citation omitted; internal quotation marks omitted.) Id., 561. The claim in the second count does not arise from the Hender action and fails to meet the identity of causes prerequisite to the application of § 52-592.
" Although § 52-592 is a remedial statute and must be construed liberally . . . it should not be construed so liberally as to render statutes of limitations virtually meaningless." (Citation omitted.) Pintavalle v. Valkanos, supra, 216 Conn. at 417. The Hender action did not put Scarpa on fair notice that Apex was going to make a claim of civil theft against him as an individual and as its employee. The statute of limitations for this claim ran in January 2015. The second count is untimely and not saved by § 52-592. Accordingly, Scarpa is entitled to summary judgment on the second count as a matter of law.
For the foregoing reasons, the defendant's motion for summary judgment is denied as to the first count and granted as to the second count.