Argued
December 6, 2018
Procedural
History
Action
in replevin to recover certain chattel in the defendants'
possession, and for other relief, brought to the Superior
Court in the judicial district of Waterbury, where the court,
Brazzel-Massaro, J., granted the
defendants' motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed.
Christopher R. LaSaracina, for the appellant (plaintiff).
John
J. Ribas, for the appellees (defendants).
DiPentima, C. J., and Prescott and Elgo, Js.
OPINION
PRESCOTT, J.
In this
replevin action, the plaintiff, Ion Bank, appeals from the
judgment of the trial court granting a motion to dismiss
filed by the defendants, J.C.C. Custom Homes, LLC (J.C.C.),
Rock On Excavation Services, LLC (Rock On), John C.
Ciappetta, and Dawn E. Ciappetta. The court concluded that
the plaintiff lacked standing to bring the action because,
prior to commencing it, the plaintiff had assigned its
interest in the underlying promissory note to Nutmeg
Financial Holdings, LLC (Nutmeg), and, therefore, the court
lacked subject matter jurisdiction.
The
plaintiff concedes that the action was commenced in the name
of the wrong party. Nevertheless, the plaintiff claims on
appeal that the court improperly granted the motion to
dismiss because it (1) failed to consider an amended
complaint that the plaintiff filed pursuant to Practice Book
§ 10-59, which, the plaintiff argues, substituted Nutmeg
in as the proper plaintiff by operation of law and, thus,
cured any defect regarding standing, (2) concluded that the
plaintiff was required to file a motion for permission to
substitute in a new plaintiff and failed to treat the amended
complaint as a motion to substitute, and (3) failed to
conclude that Nutmeg, as the assignee of the note, is
entitled to maintain an action either in its own name or in
the name of its assignor, the plaintiff. We are not persuaded
by the plaintiff's arguments and, accordingly, affirm the
judgment of the court.
The
following facts, as set forth by the trial court in its
memorandum of decision or taken from the complaint and viewed
in the light most favorable to the plaintiff, are relevant to
our resolution of the present appeal. J.C.C., through it
owners, John C. Ciappetta and Dawn E. Ciappetta, executed a
commercial promissory note in favor of the plaintiff on
December 29, 2010, in the principal amount of $170, 000.
J.C.C. agreed to repay the loan along with interest and any
applicable late charges by January 1, 2016. J.C.C. also
executed a commercial security agreement in which it pledged
a 2004 Ford F350 pickup truck as collateral for the loan. As
additional security for the note, Rock On, a limited
liability company also owned by the Ciappettas, executed
commercial security agreements providing as collateral a 1981
Kenworth W900 truck, a 1989 East Dump trailer, and a 1998
Caterpillar 416 backhoe. Rock On, John C. Ciappetta, and Dawn
E. Ciappetta also executed guarantees assuming liability for
repayment of the note.
J.C.C.
failed to make the required monthly loan payments and
defaulted on the note. Despite demands by the plaintiff for
repayment, the defendants did not repay the loan or make the
collateral available to the plaintiff.
On June
30, 2016, the plaintiff assigned all of its interest in the
note to Nutmeg.[1] Despite the assignment, the plaintiff, on
July 1, 2016, initiated the underlying replevin action
against the defendants by service of process.[2] In addition to a
prejudgment writ of replevin expressly identifying the
plaintiff as the party entitled to immediate possession of
the collateral, the process included the requisite affidavit
and bond. See General Statutes § 52-518. The return date
on the writ was August 9, 2016.
On
August 17, 2016, the plaintiff filed a pleading titled
‘‘Plaintiff's Amended Complaint, ''
attached to which was an amended prejudgment writ of replevin
substituting Nutmeg as the named plaintiff. The amended
complaint stated in relevant part: ‘‘Pursuant to
Practice Book §§ 9-16[3] and 10-59, [4] the plaintiff
hereby amends its complaint as of right to amend, among other
things, the named plaintiff. The proper plaintiff, [Nutmeg],
has acquired the right to collect the debt due, as evidenced
by the allonge to the promissory note as alleged in the
complaint. Said note is secured by, among other things, the
guarantees and security agreements as described in the
complaint, and said guarantees and security agreements have
been assigned to [Nutmeg] as well. Accordingly, [Nutmeg] is
now the proper plaintiff and should be substituted as the
sole plaintiff in this action.'' (Footnotes added.)
On
October 14, 2016, the defendants filed a motion to dismiss
the action for lack of subject matter jurisdiction. According
to the defendants, because the plaintiff assigned the note to
Nutmeg prior to commencing the replevin action, it lacked a
legal interest in the items it sought to replevy and, thus,
lacked standing to commence or maintain the action. The
defendants further argued that the plaintiff's attempt to
substitute in Nutmeg as the real plaintiff in interest by
filing an amended complaint was improper and did not
‘‘accomplish the desired
substitution.''[5]
The
plaintiff filed an objection to the motion to dismiss. The
plaintiff argued with respect to the issue of standing that
(1) Nutmeg was substituted in as the real plaintiff in
interest by virtue of the amended complaint it filed pursuant
to Practice Book § 10-59, (2) even if it was not
entitled to substitute in Nutmeg as a matter of right, the
court should treat the amended complaint as a motion to
substitute pursuant to General Statutes § 52-109, and
(3) it was entitled to maintain the action in its own name
despite the assignment of the note to Nutmeg.
The
court, Brazzel-Massaro, J., heard argument
on the motion to dismiss on December 5, 2016. On March 20,
2017, the court rendered a decision granting the motion to
dismiss, concluding that, because the plaintiff lacked
standing at the time it commenced the replevin action, the
court lacked subject matter jurisdiction over the matter ab
initio. The court rejected the plaintiff's argument that,
as the assignor of the note to Nutmeg, it had standing to
maintain the action on behalf of its assignee. The court
reasoned that, in the present case, the plaintiff
‘‘[had given] up all of its rights, title, and
interest in the note to Nutmeg on June 30, 2016, and did not
have standing to commence suit itself.'' The court
further rejected the plaintiff's argument that it had
effectuated a substitution of Nutmeg as the plaintiff by
virtue of its amended complaint. The court held that,
pursuant to § 52-109, substitution of a plaintiff could
only be effectuated if the court determined pursuant to a
motion for substitution that the action had been
‘‘commenced in the name of the wrong plaintiff
through mistake.'' (Internal quotation marks
omitted.) The plaintiff, however, had never filed a proper
motion with the court. The plaintiff filed a timely motion to
reargue the court's granting of the motion to dismiss,
which the court subsequently denied. This appeal followed.
We
begin with general principles of law, including our standard
of review. ‘‘Standing is the legal right to set
judicial machinery in motion. One cannot rightfully invoke
the jurisdiction of the court unless he [or she] has, in an
individual or representative capacity, some real interest in
the cause of action, or a legal or equitable right, title or
interest in the subject matter of the controversy. . . . [If]
a party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause.'' (Citation omitted; internal quotation marks
omitted.) J.E. Robert Co. v. Signature
Properties, LLC, 309 Conn. 307, 318, 71 A.3d 492 (2013).
‘‘[B]ecause
the issue of standing implicates subject matter jurisdiction,
it may be a proper basis for granting a motion to dismiss. .
. . The standard of review for a court's decision on a
motion to dismiss is well settled. A motion to dismiss tests,
inter alia, whether, on the face of the record, the court is
without jurisdiction. . . . [O]ur review of the court's
ultimate legal conclusion and resulting [determination] of
the motion to dismiss will be de novo. . . . 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. . . . [I]t is the burden of
the party who seeks the exercise of jurisdiction in his favor
. . . clearly to allege facts demonstrating that he is a
proper party to invoke judicial resolution of ...