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Biro v. Hill

Supreme Court of Connecticut

February 20, 1990

Steven G. M. BIRO, et al.
v.
Thomas W. HILL, Jr., et al.

Argued Dec. 14, 1989.

Page 183

Kenneth D. Wallace, Stamford, for appellants (plaintiffs).

Robert G. Oliver, with whom, on brief, was Carolyn P. Gould, New Haven, for appellees (defendant Sidley and Austin et al.).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and HULL, JJ.

[214 Conn. 2] GLASS, Associate Justice.

This appeal principally concerns the question of who constitutes a "necessary party" under Practice Book § 152(3). [1] Specifically, the plaintiffs, Steven G.M. Biro and his wife Safiye Guzin Altiok, appeal from a final judgment of the Superior Court, rendered March 27, 1989, striking the five counts of their amended complaint and dismissing their action due to their failure to join a "necessary party" pursuant to Practice Book § 152(3). We find error.

"Where an appeal is taken from a judgment following the granting of a motion to strike, we take the facts to be those alleged in the amended complaint construed in a manner most favorable to the pleader." Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). The amended complaint in this case reveals the following facts. Biro is a citizen of the state of Connecticut and is a practicing attorney who was duly admitted in Connecticut in 1974. Effective in August, 1979, Biro entered into a written partnership agreement with Thomas W. Hill, Jr., of the law firm of Hll and Spoliansky, which had offices located at Muscat, Oman; Dubai, United Arab Emirates; and New York, New [214 Conn. 3] York (hereinafter Oman partnership). The partnership agreement indicates that the Oman partnership wished to induce Biro to move to Oman to practice law as a partner in the firm. The agreement was not terminable by the partnership except on one year's notice, provided, however, that no such notice could be given unless Biro had been a partner for at least two years. The agreement included provisions for a guaranteed minimum yearly payment plus 20 percent of profits, a $10,000 annual credit and accrual of equity in the partnership. Liberal fringe benefits such as insurance, automobiles, a staffed villa for residence, travel and vacation were also set forth. In addition, effective August, 1979, Altiok, a computer expert, entered into a separate and distinct agreement with the Oman partnership to engage in the importation, distribution and service of computers in Oman and the United Arab Emirates.

The plaintiffs moved to Oman in October, 1979. At that time, Biro became the partner in charge of the Oman office, and was held out to clients, prospective clients and the world as such. By early 1981, however, the plaintiffs allege that Sidley and Austin, a large law firm with offices worldwide, began surreptitious negotiations with Hill. Specifically, the plaintiffs assert that Sidley and Austin induced Hill to enter into a secret agreement by which Hill became a partner in Sidley and Austin. In return, Sidley and Austin acquired and took over the law practice and assets of the Oman partnership, and Biro was excised from the partnership.

Biro alleges that Sidley and Austin and four of its partners [2] (hereinafter Sidley and Austin) "successfully induced the breach of the Partnership Agreement and wantonly and recklessly disregarded that agreement [214 Conn. 4] and the fiduciary obligation owed to [him]." In particular, Biro brings three counts against Sidley and Austin: (1) inducing breach of contract; (2) conversion and misappropriation of property; and (3)

Page 184

interference with economic expectations. [3] Additionally, Altiok brings two counts against Sidley and Austin: (1) inducing breach of contract; and (2) misappropriation of property. [4] The plaintiffs allege Sidley and Austin to be solely liable for each of the two claims of inducing breaches of the contracts, and to be jointly and severally liable for the other three claims.

Personal service of process pursuant to General Statutes § 52-57(b) was made upon the partnership of Sidley and Austin and four of its partners, including Mark A. Angelson, a partner who resides in Greenwich. In addition, Hill was also named as a defendant, and both plaintiffs alleged a breach of contract count against him. Moreover, the plaintiffs included Hill as a joint tortfeaser with Sidley and Austin in three of the counts. [5] Consequently, service was made upon Hill at the Chicago headquarters of Sidley and Austin. Thereafter, however, the plaintiffs' counsel was advised that Hill was no longer a partner in Sidley and Austin and had become a resident of the state of Florida. As a [214 Conn. 5] result, personal service on Hill was not possible, and the two breach of contract counts that applied solely to him were dropped by the plaintiffs.

Sidley and Austin then filed a motion under Practice Book § 152(3) to strike all five remaining counts in the plaintiffs' amended complaint. In particular, Sidley and Austin contended that Hill was a "necessary party" within the meaning of § 152(3). The trial court agreed that Hill was a necessary party, but instead of striking the amended complaint, stayed further proceedings for ninety days, during which time the plaintiffs were given the opportunity to file an action in the New York state courts and to attempt to obtain long-arm service over Hill in Florida. The trial court stated: "If it develops that ... Hill cannot be made a party in New York, the stay will be lifted in Connecticut and the matter may then proceed in this court. If ... Hill is in fact made a party to the New York action, or, alternatively, plaintiffs do not start an action in New York, then the motion to strike will be granted." The plaintiffs, however, chose to forego bringing a New York action and requested that a final judgment be rendered in order that this appeal might be taken.

On appeal, [6] the plaintiffs argue that the trial court erred in ruling that Hill was a "necessary party" for the purposes of § 152(3). We agree. In Sturman v. Socha, 191 Conn. 1, 6-7, 463 A.2d 527 (1983), we defined "necessary parties" as " '[p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it.... [B]ut if their interests are separable from those of the parties Before the court, so that the court can proceed to a decree, [214 Conn. 6] and do complete and final justice, without affecting other persons not Before the court, the latter are not indispensable parties.' Shields v. Barrow, [58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1854) ]...." In short, a party is "necessary"

Page 185

if its presence is "absolutely required in order to assure a fair and equitable trial." Id., 191 Conn. at 7, 463 A.2d 527.

In the instant case, because the trial court can "proceed to a decree, and do complete and final justice" without Hill's being joined in the suit, we hold that Hill is not a "necessary party." First, in the two counts of inducing breach of contract, the allegation of liability is solely against Sidley and Austin, and, therefore, Hill could not have been joined even if he resided in Connecticut. Second, prior to the enactment of the Connecticut Tort Reform Act, No. 86-338 of the 1986 Public Acts, [7] this court stated: "Where two or more persons unite in an act which constitutes a wrong to another, intending at the time to commit it, or in doing it under circumstances which fairly charge them with intending the consequences which follow, they incur a joint and several liability for the acts of each and all of the joint participants.... There is no apportionment of responsibility, and no right of contribution or indemnity between them.... One may be sued severally, or any or all together." Sparrow v. Bromage, 83 Conn. 27, ...


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