Opinion
CV1540230045
03-14-2016
Connecticut Yankee Realty, Inc. v. Garden Iron, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' SECOND MOTION TO OPEN JUDGMENT (#106) AND MOTION TO DISMISS (#107)
Elpedio N. Vitale, J.
The defendants in the above captioned summary process action have moved for a second time to open a judgment of default for failure to appear entered on October 21, 2015. The defendants' motion alleges what are claimed to be " good and compelling reasons" to open the Judgment, including inter alia, a claim that the plaintiff lacks " standing" to prosecute the matter which the defendant argues deprives the court of subject matter jurisdiction.
The defendants concomitantly filed a Motion to Dismiss also arguing that there is an alleged defect in the lease which forms the basis for this summary process action. The defendants contend this defect deprives the court of subject matter jurisdiction.
The plaintiff objects to the second Motion to Open, arguing that the defendants have failed to comply with P.B. § 17-43 and C.G.S. § 52-212(b). The plaintiff further asserts that the claimed defect in the lease is a " scriveners error" that does not deprive the court of subject matter jurisdiction. The matter was heard at short calendar on November 23, 2015. The plaintiff presented testimony from Herbert T. Clark, the current vice President of Connecticut Yankee Realty, Inc., which the court has considered.
Nature of the Proceedings
The plaintiff, Connecticut Yankee Realty, Inc., filed this two count summary process action against the defendants, Garden Iron LLC, Christopher Anderson, Richard Anderson and Garden Iron Edging LLC (" defendants"), sounding in non-payment of rent and termination of the right to occupy the premises. The defendants were subsequently defaulted for failure to appear. The plaintiff alleged the following facts in its complaint.
On or about November 1, 2007, the plaintiff as landlord/lessor and the defendants as tenants/lessees or guarantors, entered into an oral lease for the use and occupancy of 25 Middlesex Turnpike, Essex, CT, 06426. The defendants agreed to pay a basic monthly rent of $3, 659 due on the first of each month. The defendants subsequently took possession and/or occupancy of the premises pursuant to the oral lease and still occupy the premises.
The plaintiff further alleged that the defendants failed to pay the basic rent due under the lease for multiple months including but not limited to November of 2014 through August of 2015. On August 20, 2015, the plaintiff caused a Notice to Quit Possession to be served on the defendants to vacate the premises on or before August 31, 2015. The defendants still continue in their possession of the premises.
Judgment in favor of the plaintiff was entered on October 20, 2015. A motion to open judgment was filed by the defendants in October 26, 2015, and was denied by the court. The second motion to open was filed with the court on October 27, 2015, and defendants attached as an exhibit a written lease between the plaintiff and the defendants' predecessor.
The lease between the plaintiff and the defendants' predecessor was executed in 1993 and in its opening paragraph refers to the tenant as " Connecticut Yankee Realty Company ." In the signature section of the lease, the tenant is referred to as Connecticut Yankee Realty, Inc. The document is signed on behalf of Connecticut Yankee Realty, Inc., by the then and current president/agent of Connecticut Yankee Realty, Inc., Herbert T. Clark. The parties are in agreement that no such entity as " Connecticut Yankee Realty Company " is registered with the Secretary of State. However, " Connecticut Yankee Realty, Inc. " is a registered company.
The parties are in disagreement, however, about the import of the discrepancy between the words " Company " and " Inc. "
Discussion
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . ." Practice Book § 10-30.
" [B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. Of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). " If . . . the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
Lack of subject matter jurisdiction may be raised at any point in the proceedings, including during trial, post judgment, or by an Appellate Court. Kolenberg v. Board of Education, 206 Conn 113, 124, 536 A.2d 577 (1988).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
" The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015). An evidentiary hearing is appropriate when a court cannot make a critical factual jurisdictional finding based on material submitted by the parties. Ruisi v. O'Sullivan, 132 Conn.App. 1, 5, 30 A.3d 14 (2013). As previously noted, the plaintiff presented the testimony of Herbert T. Clark, a signatory to the lease.
Familiarity with the case law and arguments of the parties is presumed, and therefore need not be generally repeated.
The defendant alleges that the motion to open must be granted and the matter dismissed because while the plaintiff in this action is named Connecticut Yankee Realty, Inc., the opening paragraph of the lease identifies Connecticut Yankee Realty Company as a party. There is no record with the Connecticut Secretary of State of any such entity named Connecticut Yankee Realty Company . The defendants thus assert that the signature and signature section of the lease were improper, as identifying an incorrect party to the lease, and therefore, court has no subject matter jurisdiction in this matter and the default must be set aside.
" The purpose of a motion to open is to permit the granting of a new trial when a party had a meritorious defense but did not have an opportunity to present it." Clapper v. Clapper, 3 Conn.App. 637, 638, 490 A.2d 1030, 490 A.2d 1031 (1985). Practice Book § 17-43 provides that the motion to open judgment upon a default may be granted upon " showing reasonable cause, or that a good cause of action or defense in whole or in part existing at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same."
" Summary process is a special statutory procedure designed to provide an expeditious remedy . . . It enables landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms . . . Summary process statutes secure a prompt hearing and final determination . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed." (Citations omitted; internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999). " The ultimate issue in a summary process action is the right to possession . . . and the relief available in summary process action is possession of the premises." (Citations omitted; emphasis in original; internal quotation marks omitted.) Aguinaldo v. Warner, 140 Conn.App. 264, 270, 58 A.3d 373 (2013). " While in certain cases complex issues may necessarily be part of the action . . . the ordinary summary pace cannot be stalled by defendant's simply raising the spectre of a complexity which is not . . . rooted in the nature of the relationship between landlord and tenant and in the basis of the landlord's claim to possession; or simply by the defendant's threat to raise complex defenses which are not likely to be asserted in good faith . . ." (Citation omitted; internal quotation marks omitted.) Ossen v. Wanat, 21 Conn.App. 40, 45-46, 571 A.2d 134 (1990); aff'd, 217 Conn. 313, 585 A.2d 685, cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991), Centrix Management Co., LLC v. Valencia, 145 Conn.App. 682, 691-2, 76 A.3d 694 (2013).
A lease, including the lease at issue in this case, is a contract. See Warner Associates v. Logan, 50 Conn.App. 90, 94, 718 A.2d 48 (1998). A lease is a contract under which an exclusive possessory interest in property is conveyed. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 663-64, 368 A.2d 6(1976); Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 601, 96 A.2d 217 (1953).
The analysis of the lease is governed by the basic principles of contract law.
" Generally, when the body of a contract purports to set out the names of the parties thereto and a person not named in the body of the contract signs the contract, and there is nothing in the contract to indicate that such a person signed as a party, such person is not bound by the contract and hence is not liable thereunder." 17 Am. Jur. Contracts § 415. However, " [i]t has been held that where a person signs an instrument with the intention of being a party thereto and the omission of such person's name from the body thereof was unintentional, such person will be considered as a party to the contract." Id.
Moreover, " [w]hile an alleged agreement is not binding on a person who has neither signed nor signified an intention to be bound before a written instrument is signed, contracts may be enforced against nonsignatories where a nonsigning party has accepted the written agreement and has acted upon it. C.J.S. Contract § 87. See also 80 C.J.S. Signatures § 11. (" In the absence of a statute requiring otherwise, who writes the name accompanying the mark is immaterial and a signature by mark may be sufficient, notwithstanding the fact that the name accompanying the mark is written incorrectly, the wrong name is written, no name accompanying the mark is affixed, or words indicating that the mark is intended as such are omitted.")
" A scrivener's error . . . occurs when the intention of the parties is identical at the time of the transaction but the written agreement does not express that intention because of such error." . . . 66 Am. Jr.2d Reformation of Instruments § 19. Where there is a mutuality of assent but the resulting document intended to express such agreement fails to do so by the mistake of the drafter, it is immaterial who employed the scribe. See Sikora v. Vanderploeg, 212 S.W. 3d. 277 (Tenn.Ct.App. 2006).
In the instant action, there is no evidence that the plaintiff's inclusion of the word " Company " in the lease, as opposed to " Inc., " was anything but a scrivener's error. As stated in the defendants' pleadings, there is no entity with the name Connecticut Yankee Realty Company in Connecticut, while the defendant Connecticut Yankee Realty, Inc. has been a registered Connecticut corporation since 1968. According to the pleadings, the defendants had been paying rent to the correct entity, the plaintiff, from 2007 until November of 2014. According to the uncontradicted testimony of Mr. Clark, all terms of the lease were fulfilled under the name Connecticut Yankee Realty, Inc. The defendants had thus " accepted the . . . agreement and acted upon it, " in spite of the allegedly defective signature. Despite the evident scrivener's error, the court nonetheless maintained jurisdiction over this case. See Bayer v. Showmotion, Inc., 292 Conn. 381, 390-91, 973 A.2d 1229 (concluding that the trial court properly retained jurisdiction despite scrivener's error on notice to quit with respect to quit date because error was circumstantial, defendant had actual notice of correct quit date, and defendant failed to raise defect for more than one year, demonstrating lack of prejudice).
There was no evidence presented to this court that any party in relation to this action has been mislead by said scrivener's error. The mistake is one of transcription of the parties' actual agreement. See e.g. Davenport v. Beck, 1977 OK CIV APP 40, 576 P.2d 1199 (Okl.Ct.App. 1971).
In FDIC v. Hennessee, 966 F.2d 534 (10th Cir. 1992), the Court rejected a challenge to the validity of a mortgage where the discrepancy between the note and the mortgage was far greater than that which exists in this matter. The case involved a series of notes and mortgages involving several family members and one of the mortgages contained language indicating that it was securing a note from a son to his mother when, in fact, the parties to the note were the son and a lender. In rejecting the son's argument that this inconsistency rendered the note invalid, the Court looked to the intent of the parties and found that the discrepancy was essentially a " scrivener's error." Id. 538.
Further support for the conclusion that the scrivener's error does not deprive the court of subject matter jurisdiction is found under the Connecticut Uniform Commercial Code, codified in part in General Statutes § 42a-3-402, entitled signature of representative. It states that " (2) . . . if (i) the form of the signature does not show unambiguously that the signature is made in a representative capacity or (ii) the represented person is not identified in the instrument . . . the representative is liable on the instrument unless the representative proves that the original parties did not intend the representative to be liable on the instrument."
In actions which have proceeded to trial, similar issues have been resolved via stipulation of mutual mistake or scrivener's error. See Tamborino v. Velocity Express, Inc., No. FST CV 05 05000234 S, 2008 WL 2582529, at (Conn.Super.Ct. June 6, 2008), on reargument sub nom. Tamborino v. Velocity Exp., Inc., Superior Court, judicial district of Stamford-Norwalk, No. FSTCV-05 5000234S, (Dec. 22, 2008) (where employer is described as " Velocity Express Corporation" in employment agreement when its proper name is " Velocity Express, Inc., " court allowed parties' stipulation of scrivener's error). The defendants in this action, however, were defaulted before the action could go to trial.
In addition, the lease was not between the instant parties but was between the plaintiff and the previous lessor. Nothing before the court suggests the parties in this action ever entered into a written agreement.
The defendant's reliance on America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 866 A.2d 698 (2005) is misplaced. The issue in that case involved whether the plaintiff corporation could bring an action solely under a trade name. The court held that since a corporation is a legal entity with legal capacity to sue, it could not bring an action under a trade name which does not have a separate legal existence. The issue and facts in the instant matter are clearly inapposite to the holding in Pagano .
Finally, the plaintiff also argues that the defendant's Motion to Open Judgment is legally insufficient as it fails to comply with the verification requirements of P.B. § 17-43 and C.G.S. 52-212(b).
Those provisions read as follows.
Sec. 52-212. Opening Judgment Upon Default or Nonsuit
(a) any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.
(c) The court shall order reasonable notice of the pendency of the complaint or written motion to be given to the adverse party, and may enjoin him against enforcing the judgment or decree until the decision upon the complaint or written motion.
Sec. 17-43. Opening Judgment Upon Default or Nonsuit
(a) Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant's attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The judicial authority shall order reasonable notice to the pendency of such written motion to be given to the adverse party, and may enjoin the party against enforcing such judgment or decree until the decision upon such written motion.
The court file fails to reflect the required compliance by the defendants of these provisions in connection with their second motion to open.
Therefore, for the foregoing reasons, the second motion to open and the motion to dismiss are each denied.