Opinion
No. MMX CV-08-4008482 S
October 20, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Facts
The plaintiff, Christopher Vecchitto, commenced this action on March 12, 2008, by service of writ, summons and complaint on the defendants, Colombo Vecchitto, Joseph Vecchitto, Jr., Guy P. Vecchitto, Jack Vecchitto, Ann Vecchitto, Guy J. Vecchitto, Vecchitto Italian Ice, LLC, and Thomas Vecchitto. Joseph Vecchitto, Jr., and Guy J. Vecchitto have also been served in their capacity as the co-executors of the estate of Joseph Vecchitto, Sr. The plaintiff's eight-count second revised complaint, filed on December 1, 2008, is operative for purposes of the present motion. The plaintiff alleges that the defendants breached their partnership agreement with him in the course of operating an ice cream and frozen ice business. The plaintiff's second revised complaint also sounds in breach of fiduciary duty, breach of the duty of good faith and fair dealing, tortious interference with business expectancy, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The plaintiff also seeks the imposition of a constructive trust.
"Vecchitto Lemon Ice f/k/a Vecchitto Bros. Froze Rite Ice Cream," a partnership, was also named as a plaintiff in this action. On August 26, 2008, the court, Jones, J., granted the defendants' motion to dismiss on all counts related to this plaintiff on the ground that this partnership lacked standing.
The defendants filed a motion to strike and a supporting memorandum of law on December 15, 2008. The plaintiff filed an objection and a supporting memorandum of law on August 26, 2009. The parties were heard at short calendar on September 29, 2009.
Discussion
Practice Book § 10-39(a) provides: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof."
The defendants first move to strike the entire complaint on the ground of nonjoinder of a necessary party, James Vecchitto, who is a named partner in the 1957 partnership agreement. The plaintiff alleges that "James Vecchitto has been disassociated with the partnership since 1994 when he gave notice to the other partners . . . of his express will to voluntarily relinquish his interests in the partnership to said partners and withdraw as a partner." (Second revised complaint, count one, ¶ 9.) The defendants argue that James Vecchitto's notice dissolved the partnership, and that the plaintiff's failure to allege facts showing that James Vecchitto has been divested of his ownership interest in the partnership makes him an indispensable party. The plaintiff argues that James Vecchitto is not an interested party because he abandoned his interest in the partnership in 1994 and the other partners waived their right to dissolve the partnership.
The defendants state in their memorandum in support of their motion to strike that James Vecchitto has recently passed away.
In the course of raising their nonjoinder argument, the defendants have essentially argued that the second revised complaint should be stricken because each count depends on a partnership agreement that has been dissolved by operation of law. In particular, on the face of the motion, the defendants argue that "[u]nder the common law, as well as [General Statutes § 34-372] and its predecessor, [General Statutes] § 34-67, a partnership is dissolved when there is a dissociation of a partner, or where there is notice from a partner of an express will to withdraw as a partner. Although paragraph 13 of all counts of the second revised complaint contains the conclusionary statement that the partnership has not been dissolved, there are no factual allegations to indicate how, under any provisions of the Connecticut General Statutes or under the common law, the partnership was not dissolved." Thus, regardless of whether James Vecchitto is a necessary party, the defendants have argued that this action cannot proceed if it depends on a dissolved partnership agreement.
The plaintiff correctly points out that "after the dissolution of a partnership and before the winding up of its business is completed, all of the partners . . . may waive the right to have the partnership's business wound up and the partnership terminated." General Statutes § 34-373(b). In 1994, however, when James Vecchitto allegedly left the partnership, Connecticut had not yet adopted the Revised Uniform Partnership Act, which implemented § 34-373(b). See Public Acts 1995, No. 95-341. At that time, both statutory and common law provided "for dissolution of the partnership in any case where a change in the relation of the partners is caused by any partner ceasing to be associated in the carrying on of the business." Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 274, 492 A.2d 180 (1985). In particular, General Statutes (Rev. to 1993) § 34-68, which was repealed by P.A. 95-341, provided: "On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed." It is true that a partnership for a fixed term may be continued after the termination without an express agreement; Faggelle v. Marenna, 131 Conn. 277, 279, 38 A.2d 791 (1944); but the partnership agreement at issue was at will. Paragraph 4 of the agreement provides: "The term of the partnership shall commence on [January 23, 1957] and shall continue indefinitely."
Thus, when James Vecchitto disassociated himself, the partnership could not choose to waive dissolution. As a New York appellate court, applying similar law, noted, "[t]hat the [remaining partners] continued operating the business of the former partnership did not revive that dissolved entity. Despite the fact that many incidents of the ongoing business endured, the three remaining partners created a new relationship among themselves, a relationship which of necessity must differ from the preexisting arrangement containing rights and obligations vis-a-vis [the departing partner]." Burger, Kurzman, Kaplan Stuchin v. Kurzman, 139 App.Div.2d 422, 527 N.Y.S.2d 15 (1988), cert. denied, 74 N.Y.2d 606, 543 N.E.2d 85, 544 N.Y.S.2d 820 (1989). When James Vecchitto left, the 1957 partnership was legally dissolved and its only remaining function was to wind down its business.
The plaintiff brings the present action to enforce the terms of the 1957 partnership agreement, alleging that "[t]he aforesaid defendant partners are parties to a partnership agreement dated January 23, 1957 . . ." (Second revised complaint, count one, ¶ 8.) The 1957 partnership agreement provides for the equal distribution of net profits from an ice cream business at the end of each season. The agreement does not provide for its continuation upon the disassociation of one of the partners. Under the partnership law in effect in 1994, when James Vecchitto left the partnership, the partnership agreement was dissolved and the partners were obliged to settle their accounts. See General Statutes (Rev. to 1993) § 34-78 (settlement of accounts). The second revised complaint alleges, however, that "the partnership has not been dissolved, and the business of the partnership has not been concluded and/or wound-up." (Second revised complaint, count one, ¶ 13.) "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Here, the plaintiff's legal conclusion — that the 1957 partnership has not been dissolved — is not supported by the plaintiff's allegation that James Vecchitto left the partnership in 1994. Rather, this allegation demonstrates that the partnership was dissolved in 1994 based on the law in effect at that time. Therefore, the plaintiff's complaint is legally insufficient because each of its counts relies on an unenforceable partnership agreement.
Accordingly, the motion to strike the second revised complaint is granted.