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Nassra v. Nassra

Court of Appeals of Connecticut

March 27, 2018


          Submitted on briefs November 30, 2017

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Bridgeport and tried to the court, Frankel, J.; judgment dissolving the marriage and granting certain other relief; thereafter, N.J. Sarno and Company, LLC, filed a motion for order of payment, which the court, Adelman, J., granted, and the defendant appealed to this court. Affirmed.

          Thomas J. Weihing, Adam J. Tusia, and Joseph D. Compagnone filed a brief for the appellant (defendant).

          Logan A. Forsey and Timothy J. McGuire filed a brief for the appellee (N.J. Sarno and Company, LLC).

          Sheldon, Elgo and Mihalakos, Js.


          MIHALAKOS, J.

         This appeal arises from an action in which a nonparty, N.J. Sarno and Company, LLC (N.J. Sarno), filed a motion for order of payment of court-ordered visitation supervisor fees in connection with the underlying dissolution action between the plaintiff[1]and the defendant, George A. Nassra. After the court held a hearing on the motion, it rendered judgment for N.J. Sarno, finding the parties jointly and severally liable in the amount of $8785. On appeal, the defendant claims that the trial court: (1) lacked subject matter jurisdiction over the action because N.J. Sarno lacked standing; (2) improperly determined that an oral contract existed between N.J. Sarno and the defendant;[2] (3) improperly determined that N.J. Sarno's contract claim was not time barred by the three year statute of limitations provided by General Statutes § 52-581 (a); and (4) improperly rendered judgment in favor of N.J. Sarno after the parties had complied with the terms of the separation agreement. We disagree and, accordingly, affirm the judgment of the trial court.

         The record reflects the following facts and procedural history. The plaintiff and the defendant were married on July 4, 1993. On December 15, 2008, the plaintiff filed an action seeking the dissolution of the marriage and custody of the parties' two minor children. Attorney Brian Kaschel subsequently was appointed by the court as guardian ad litem for the parties' two minor children. The parties agreed to deduct funds from the defendant's Northwest Mutual life insurance policy, which were to be held by Kaschel, to pay for attorney, expert and guardian ad litem fees.

         On October 16, 2009, in connection with court-ordered reunification therapy, Kaschel referred the parties to David J. Israel, a psychologist, for an evaluation of the minor children and the development of a parenting plan. Kaschel also engaged Nicholas Sarno, a principal of N.J. Sarno, to provide supervised visitation services for the defendant and his children. In December, 2009, Israel began reunification therapy between the defendant and his two children. Sarno was present and ‘‘supervised'' at each of these sessions with Israel. In February, 2010, Sarno and Donald Jacques, another employee of N.J. Sarno, began to facilitate and supervise visitation between the defendant and his children outside of sessions with Israel. On February 25, 2010, the defendant filed a motion for payments, in which he requested permission to deduct additional funds from his life insurance policy to pay outstanding bills for ‘‘[Israel] . . . and [Sarno], who is assisting [Israel] with supervised visitation.'' On March 17, 2010, N.J. Sarno sent a letter tothe defendant, stating: ‘‘Please be advised that if [N.J. Sarno] does not receive payment in full on your [six] outstanding invoices by . . . March 19, 2010, we will no longer be able to continue providing [s]uper- vised [v]isitation services. . . . Sincerely, Nicholas Sarno . . . [N.J. Sarno].'' On March 18, 2010, the court, by agreement of the dissolution parties, entered an order authorizing the defendant to borrow an additional $25, 000 from the life insurance policy ‘‘for the payment of fees to Kaschel . . . [Israel] and his assistant [Sarno]. [Kaschel] will hold and distribute [these] funds.'' Thereafter, the defendant brought his account current and N.J. Sarno continued to provide supervised visitation services. On July 29, 2010, N.J. Sarno terminated its services on the basis of lack of payment dating back to June 11, 2010.

         Approximately four years later, on July 24, 2014, N.J. Sarno brought an action in the small claims session of the Superior Court. On March 6, 2015, the court determined that it lacked jurisdiction and dismissed the action. Four days later, N.J. Sarno filed an appearance in the underlying dissolution action and, thereafter, on March 18, 2015, moved for an order of payment of court-ordered visitation supervisor fees. In its motion, N.J. Sarno alleged that the defendant owed it $8785 for court-ordered supervised visitation services rendered between June 11, 2010 and July 29, 2010.

         On April 1, 2015, the defendant moved to dismiss N.J. Sarno's motion, claiming that the court lacked subject matter jurisdiction because N.J. Sarno did not have standing to bring the action. Specifically, the defendant argued that N.J. Sarno lacked standing because it ‘‘was not involved in the instant action, '' ‘‘ha[d] never been referred to throughout the case, '' and ‘‘is a different entity than [Sarno] in his capacity as [Israel's] assistant.'' The defendant attached as an exhibit the court's March 18, 2010 order, which refers to Sarno as Israel's assistant. On April 21, 2015, N.J. Sarno filed an objection to the defendant's motion to dismiss the order of payment. N.J. Sarno attached as an exhibit the March 17, 2010 letter.

         On June 24, 2015, the court, Sommer, J., issued a written order denying the defendant's motion to dismiss. In its order, the trial court made the following findings: ‘‘In this action, there is no dispute that the defendant received the services rendered by individuals employed by [N.J. Sarno] over a significant period of time beginning in January, 2010, in compliance with court ordered reunification therapy for the defendant and his children, that the defendant paid a portion of the bill for said services and requested the family court's permission to utilize certain financial resources to pay for court-ordered supervised visitation providedby individuals under the auspices of [N.J. Sarno]. . . . As noted by [N.J. Sarno], the [defendant] has failed to submit any proof to rebut [N.J. Sarno's] jurisdictional allegations or any evidence which would call them into question. . . . [T]he court finds that the defendant has failed to establish a basis for the court to dismiss the motion for order of payment of court-ordered visitation supervisor fees. . . .''

         On July 7, 2015, the defendant moved the court for reconsideration, or in the alternative, articulation of certain factual findings underlying its denial of his motion to dismiss. Specifically, the defendant requested that the court articulate its findings that: (1) ‘‘there is no dispute that the defendant received the services rendered by the individuals employed by [N.J. Sarno]'' and (2) ‘‘the defendant paid a portion of the bill for said services.'' The court, Adelman, J., denied the defendant's motion on July 20, 2015.[3]

         On December 14, 2015, Judge Adelman conducted a hearing on N.J. Sarno's motion for order of payment. The court heard testimony from Sarno, who explained that he was a co-owner of N.J. Sarno, which was an active limited liability company at all times it provided services to the defendant. Sarno testified that he was not Israel's assistant, had no formal working relationship with Israel and that he became involved at the request of Kaschel. Sarno further testified that, initially, there was an agreement that Kaschel would pay N.J. Sarno's invoices until the money ran out of escrow. Sarno explained that in March, 2010, there was an unpaid balance of approximately $4000 and that ‘‘[he] could no longer carry [the defendant]'' because ‘‘[he] had a responsibility not only to [his] company and [himself], but also to one of [his] employees.'' Sarno informed the defendant that he could not continue to provide visitation services if he was not paid. Sarno testified that the defendant replied ‘‘please, don't leave. . . . I promise to pay you'' and that, thereafter, the defendant would pay him ‘‘now and then.''

         At the hearing, N.J. Sarno submitted into evidence eight invoices that were billed by N.J. Sarno to the defendant for services performed between April 1, 2010 and July 29, 2010. Four invoices were marked ‘‘paid''; the four remaining invoices were unpaid, totaling $8785. Sarno testified that the invoices accurately represented the services that were provided to the defendant. Sarno stated that he hand delivered an invoice to the defendant on a weekly basis. Sarno further testified that he would always provide receipts for payments made by the defendant, stating: ‘‘[I]f [the defendant] made a payment and if it was not by check, if it was cash, we wrote out a . . . hand receipt that would say to [the defendant] from [N.J. Sarno], subject cash payment towards balance. Then in the body we would write received from [the defendant] . . . the sum . . . to be placed against balance outstanding, and then signed. . . . We have never . . . stopped that procedure in twenty-three years.'' Sarno acknowledged that he has no record of specific payments made by Kaschel or the defendant, or copies of receipts, just that the invoices were paid.

         The defendant also testified. He disagreed with the dates of service listed on the invoices. He further testified that he sometimes paid Sarno in cash but that he was never given a receipt. After hearing testimony, the court stated that it was ‘‘certainly familiar with [Sarno's] company and the services that [N.J. Sarno] has rendered. . . . [E]verything in this file indicates, in agreements and orders, that this was . . . a joint debt of the parties.'' The court then ordered that the plaintiff and defendant ‘‘shall be equally responsible for the debt to [N.J. Sarno] in the amount of $8785.'' This appeal followed. Additional facts and procedural history will be set forth as necessary.


         We first address the defendant's standing claim because it implicates subject matter jurisdiction and, thus, presents a threshold issue for our determination. See, e.g., Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003) (‘‘[o]nce the question of lack of jurisdiction of a court is raised, [however, 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]). The defendant claims that N.J. Sarno, a limited liability company, lacks standing because it does not have a legal or equitable right, title or interest in the subject matter of this controversy. Specifically, the defendant argues that ‘‘[a]lthough [Sarno] acted as [Israel's] assistant to facilitate and supervise the visitation . . . [N.J. Sarno] was not involved in the instant action, '' and that ‘‘there is no evidence that a contract, either oral or written, existed between N.J. Sarno and [the defendant].'' In response, N.J. Sarno argues that ‘‘there was ample evidence that [it] had standing to [enforce the terms of the oral contract] and bring [an action] and, therefore, the court had subject matter jurisdiction.'' We agree with N.J. Sarno.

         We initially note that although the defendant has appealed from the court's determination regarding liability, he renews his argument, previously raised in his motion to dismiss, that the court lacked subject matter jurisdiction because N.J. Sarno lacked standing.[4] ‘‘If a party is found to lack standing, the court is without subject matter jurisdiction to hear the case. Because standing implicates the court's subject matter jurisdiction, the [nonparty] ultimately bears the burden of establishing standing. A trial court's determination of whether a [nonparty] lacks standing is a conclusion of law that is subject to plenary review on appeal. We conduct that plenary review, however, in light of the trial court's findings of fact, which we will not overturn unless they are clearly erroneous. . . . In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the [record]; where the factual basis of the court's decision is challenged we must determine whether the facts . . . are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . A court's determination is clearly erroneous ...

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