Opinion
DBDCV156017261S
01-13-2016
Serell Limited Partnership v. CTRE, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS, NO. 104.00
Anthony D. Truglia, J.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Serell Limited Partnership, is a former owner of the real estate located at 33 Church Hill Road, Newtown, Connecticut (premises). The defendant, CTRE, LLC, is a former tenant who rented the premises from January 2003 through May 2011. In its complaint, the plaintiff alleges that the defendant entered into a written lease for the use and occupancy of the premises in November 2002 (lease). The initial term of the lease commenced January 1, 2003 and ended December 31, 2007. By letter dated October 19, 2007, the defendant exercised its option to extend the lease for a second five-year term which, had the lease run its course, would have expired December 31, 2012. The plaintiff further alleges that the defendant " failed to make payments of rent and additional rent due under the lease for the month of May 2011, and thereafter." Finally, the plaintiff alleges that the defendant vacated the premises on or about May 1, 2011, and " [d]espite demand, the defendant has neglected and refused to pay the plaintiff the sums owed under the lease." The plaintiff alleges that the lease provides for the payment of attorneys fees and other costs or expenses incurred in any legal action to enforce the terms of the lease. The plaintiff, therefore, seeks damages for the defendant's breach, plus costs and attorneys fees.
The defendant now moves to dismiss the plaintiff's action for lack of standing. The defendant argues that the premises, which is the subject of the lease in this case, was encumbered at all times by an open-end mortgage deed executed by the plaintiff's predecessor in title. That mortgage deed, attached as an exhibit to the defendant's memorandum of law in support of the motion, contained provisions for a collateral assignment of all " [e]xisting or future leases, subleases, licenses, guaranties and any other written or verbal agreements for the use and occupancy of the [p]roperty." The defendant asserts that the plaintiff fell behind in its payments to the mortgagee and, in February 2009, the mortgagee brought an action to foreclose the plaintiff's interest in the premises. On or about March 17, 2009, the plaintiff's mortgagee exercised its rights under the collateral assignment by notifying the defendant (then a tenant in possession) to forward to it all rent and additional rent payments due to the plaintiff as landlord. The affidavit of the defendant's facilities manager (#106) verifies that the lender directed the plaintiff " to make all future payments of rent, additional rent and any other charges due under your lease with the Owner" to USA Bank. The defendant has submitted an affidavit from its chief financial officer (#107.00) certifying that it made all monthly rent payments due under the lease to the mortgagee, or its successor in interest, from the date of notification in 2009 through February 2011.
See USA Bank v. Serell Limited Partnership, Superior Court, judicial district of Danbury, Docket No. CV-09-5006555-S (June 23, 2009, Sommer, J).
The defendant asserts in its memorandum that on November 15, 2009, the plaintiff filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court in Bridgeport. The plaintiff did not, according to the defendant, at any time move to open or otherwise modify, the foreclosure judgment dated June 23, 2009.
In support of its motion, the defendant next asserts that on February 23, 2011, it gave notice to the plaintiff's mortgagee that it intended to move out of the premises within sixty days. At this time, the defendant asserts that it received " an order to vacate the property as unsafe due to a collapsed chimney." The defendant also discovered that the premises did not have a certificate of occupancy, and that " there were some 10 outstanding building permits for the property." The defendant vacated the premises on May 1, 2011.
On May 5, 2011, the U.S. Bankruptcy Court, Schiff, J., issued an order approving and authorizing a sale of the premises " Free and Clear of any Liens, Claims and Interests." A copy of the court's order is attached as an exhibit to the defendant's memorandum. The court's order was recorded in the Town of Newtown Land Records in Volume 1021 at Page 138. Also attached to the defendant's memorandum is a copy of a quitclaim deed from the plaintiff to Customers Bank, dated August 1, 2011, recorded in Volume 993 at Page 361 of the Newtown land records, verifying that the plaintiff released all of its right, title and interest in the premises to its mortgage holder on that date.
The defendant argues that as of March 2009, the plaintiff had no right to collect any rents due under the lease because those rights had been irrevocably and unconditionally assigned to its mortgagee. Second, the defendant argues that as of August 1, 2011, the plaintiff quitclaimed the premises to its mortgagee, including " all appurtenances" thereto, which include the rents and profits arising from the premises. Therefore, the plaintiff had no right to any of the rents and profits due under the lease after March 2009, and therefore, it could have no colorable claim of injury after that date even if the defendant's failure to pay rent after May 1, 2011 was not legally justified or excused. Finally, the defendant has submitted a copy of an email from the president of Customers Bank confirming that the bank, as the plaintiff's successor in interest in the premises, and all rents and profits arising therefrom, declined to take " any future action related to [the] lease agreement for the . . . property."
The plaintiff's complaint, therefore, which alleges nonpayment of rent commencing May 1, 2011, is limited to rent, additional rent and costs of collection due and payable under the lease for the months of May, June and July 2011.
In response to the foregoing, the plaintiff argues that none of the defendant's arguments implicate standing. The plaintiff argues that while the defendant's arguments and evidence serve to controvert the plaintiff's claims, in order to establish standing to bring an action, a plaintiff need only establish a colorable claim to the relief requested, not prove the claim on the merits. Second, the plaintiff argues that as a debtor in possession in bankruptcy, the plaintiff still had the right to collect rent from the premises, notwithstanding the collateral assignment of rents. The plaintiff asks the court to deny the motion to dismiss, or in the alternative, to schedule an evidentiary hearing on the factual issues raised by the defendant.
When issues of fact are in dispute, the court must hold an evidentiary hearing. See, e.g., Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003); Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983); Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 156, 7 A.3d 414 (2010), cert. denied, 300 Conn. 913, 13 A.3d 1101 (2011).
II. DISCUSSION
Practice Book § 10-30 provides in relevant part that: " (a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter . . ." " 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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007), quoting State v. Haight, 279 Conn. 546, 550, 903 A.2d 217 (2006). " When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). " A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002). Finally, when determining whether the court has jurisdiction over any controversy, " every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012).
The law concerning standing is well settled. " Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 11, 901 A.2d 649 (2006).
On the other hand, standing, when challenged, does require a preliminary showing. " Standing is established by showing that the party claiming it 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] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citations omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369-70, 880 A.2d 138 (2005). " 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 and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [which may be remedied]." (Internal quotation marks omitted.) Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995). See also In the Matter of Mary E. Bachand, 306 Conn. 37, 52, 49 A.3d 166 (2012).
In the present case, the court agrees with the defendant that at no time after March 2009, did the plaintiff have any right, title or interest in the rents and profits arising from the premises. Thus, at no time after March 2009, could the plaintiff have been aggrieved by a breach of the lease by the defendant.
The court declines the plaintiff's request for an evidentiary hearing on this motion. The plaintiff does not dispute any of the facts upon which the defendant relies. In its memorandum in opposition to the motion, the plaintiff disputes the legal force and effect of the uncontroverted facts contained in the defendant's affidavits and exhibits, but does not directly challenge them.
The plaintiff did not file an affidavit of facts or any exhibits to its memorandum of law in opposition to the motion that contradict or dispute any of the material facts relied on by the defendant; hence, the facts contained in the defendant's affidavits and exhibits are deemed to be admitted.
III. CONCLUSION
For the reasons set forth above, the defendant's motion to dismiss is granted.