Opinion
No. CV 09 6002117S
April 20, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS, #111
Before the court is a motion to dismiss filed by the defendants, Ralph Calabrese and R. Calabrese Agency, LLC, (hereinafter collectively "Defendants) on the basis of lack of subject matter jurisdiction. Specifically, they argue that this dispute is not ripe for adjudication due, in full, to the pending appeal of Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, Docket No. CV 07-5003201-S, Appellate Docket No., AC 31449. (Hereinafter referred to as "Chung action.")
Parties Calco Construction Development and its principal, John A. Senese are also defendants in this action.
By way of background, the plaintiff, Landmark Investment Group, LLC, (Landmark), entered into a purchase and sales agreement with Chung Family Realty Partnership, LLC, (Chung, LLC) sometime in June 2005. In October 2006, Chung, LLC, terminated the contract, and Landmark instituted an action against it for, inter alia, breach of contract. (Chung action.) The court found that Chung, LLC, had illegally terminated its contract with Landmark, and Chung, LLC, has appealed that decision, which appeal is currently in the briefing stage. (Dunnell, J., August 19, 2009).
The plaintiff brought this action by way of summons and complaint, dated September 16, 2009, asserting claims for tortious interference with business expectancy, civil conspiracy, and CUTPA violations, all stemming from the defendants' alleged conduct inducing Chung, LLC, to terminate its agreement with Landmark causing Landmark substantial damages. The defendants contend that the unlawfulness of Chung's termination of the contract serves as the foundation of the plaintiff's claims in this matter. Specifically, each of the four counts in the plaintiff's complaint in this action claims, essentially, that Chung, LLC, breached its contract with the plaintiff, because the defendants wrongfully assisted and/or induced Chung to commit the breach. The defendants argue that if the Appellate Court sustains Chung's appeal — upholding the court's finding that Chung illegally terminated the contract — the plaintiff will have a good faith basis for alleging breach herein, but if the plaintiff is not successful in that appeal — the Appellate Court finds there was no illegal termination of the contract — the plaintiffs' claims will fail entirely. Thus, the defendants argue that this matter is nonjusticiable, divesting this court of subject matter jurisdiction.
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[S]ubject matter jurisdiction . . . is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Lesnewski v. Redvers, 276 Conn. 526, 531, 886 A.2d 1207 (2005). "[O]nce the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).
"[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." Weiner v. Clinton, 100 Conn.App. 753, 757, 919 A.2d 1038, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007). The issue of ripeness implicates subject matter jurisdiction since a controversy which fails for ripeness is not justiciable. Esposito v. Specyalski, 268 Conn. 336, 347, 844 A.2d 211 (2004) ("ripeness is a sine qua non of justiciability"). "Justiciability involves the authority of the court to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . . Consequently, a court may have subject matter jurisdiction over certain types of controversies in general, but may not have jurisdiction in any given case because the issue is not justiciable." (Citation omitted; emphasis in original; internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 7, 917 A.2d 966 (2007).
"[The Supreme Court has] stated that the rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . [and the court therefore] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Internal quotation marks omitted.) Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004).
The defendants contend that the court lacks subject matter jurisdiction because the case is not ripe for adjudication due to the pending appeal. They argue that the plaintiff's claims spring entirely from the assertion that the underlying contract was unlawfully breached by Chung, thus, the outcome in the pending appeal will be binding upon plaintiff on that issue. The plaintiff responds that this action is ripe despite the pending appeal in the Chung action because it involves several different parties, none of which are involved in the Chung action as defendants, and the issues in this action are completely different than the issues in the Chung action.
The defendants' argument fails on two grounds. First, a subsequent suit is ripe for adjudication notwithstanding a pending appeal in a previous related matter. In Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961), the Supreme Court stated that "[t]he fact that [a] judgment was appealed from makes no difference, because a party cannot litigate in a second action matters already concluded in a prior one. If the judgment appealed from is sustained, there is an end to the matter. If error is found and a new trial ordered, the party has an opportunity to retry the issues in the first action." Id. Although the same reasoning would apply, the present action is distinguishable from Salem Park, because in Salem, the second action essentially involved the same parties and both actions involved the same issues. Here, this matter is between several different parties, and is based upon different causes of action and conduct, none of which were involved in the Chung action.
The issues in this action, although stemming from the breach of the contract between Landmark and Chung, are different than those in the Chung action now being appealed. Further facts are required to explain this. Chung, LLC, is the owner of a piece of commercial property located in Plainville, Connecticut. The defendants are the real estate broker and brokerage house hired to market and sell that property. The defendant, Calco Construction, like Landmark, acquires and develops commercial property throughout Connecticut. In the Chung action, the only defendant was Chung, LLC. Landmark alleged that Chung, LLC, had wrongfully terminated its contract with it, and based on that contention, sought specific performance of the parties' contract. In the present action, Landmark contends that the defendants tortiously interfered with the plaintiff's contractual relationship with Chung, LLC, collectively engaged in civil conspiracy and violated the Connecticut Unfair Trade Practices Act, ("CUTPA"). But for the defendant's alleged tortious interference with its contract with Chung, LLC, Landmark would have been free to develop the property as desired. This would be true whether or not Chung LLC's termination of the contract was unlawful.
The plaintiff argues that this matter fails to meet the first and fourth prongs of the Burton test. The court does not agree. As argued by the plaintiff, Landmark can make out a prima facie case of tortious interference with the contract, whether Chung, LLC, lawfully ended its contract with Landmark or illegally breached it. The court will not address the argument made by the plaintiff that even assuming that a pending appeal could render a matter not ripe, the matter is ripe because Landmark does not need to show that its contract with Chung, LLC, was breached or unlawfully terminated. See Herman v. Endriss, 187 Conn. 374, 377, 446 A.2d 9 (1982) ("it is not essential to the cause of action [of tortious interference with a contract] that the tort has resulted from an actual breach of contract").
CONCLUSION
For the foregoing reasons, the motion to dismiss is denied.