Izzo v. Quinn

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BENEDETTO IZZO v. RICHARD QUINN ET AL.
(AC 37510)
DiPentima, C. J., and Mullins and Mihalakos, Js.
Submitted on briefs November 30, 2016—officially released February 7, 2017
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Albert J. Oneto IV and Peter E. Ricciardi field a brief
for the appellants (defendants).
Patrice Noah filed a brief for the appellee (plaintiff).
Opinion
MULLINS, J. The defendant, Richard Quinn,1 appeals
from the judgment of the trial court dismissing his four
count counterclaim against the plaintiff, Benedetto Izzo,
doing business as New Haven Drywall.2 On appeal, the
defendant claims that the court erred in dismissing his
counterclaim on the ground that he had failed to join
an indispensable or necessary party. We agree, and,
accordingly, we reverse the judgment of the trial court.
The following undisputed facts and procedural his-
tory inform our decision. The plaintiff, acting under the
name ‘‘Benedetto Izzo dba New Haven Drywall,’’ filed
a complaint with the Superior Court seeking to fore-
close a mechanic’s lien that had been filed against the
defendant’s property. The plaintiff alleged that he had
filed the lien because the defendant had failed to pay
sums due under a home improvement contract entered
into between him and the defendant.
In response to the complaint, the defendant filed an
answer, three special defenses and a four count coun-
terclaim. In the special defenses, the defendant alleged:
(1) he had contracted with North Haven Drywall, LLC,
to restore his fire damaged residence, Benedetto Izzo
had acted as the general contractor on that job, and
the work was not performed in a workmanlike manner;
(2) the mechanic’s lien was not filed timely; and (3) the
plaintiff lacked standing to enforce the mechanic’s lien
because the defendant had contracted with North
Haven Drywall, LLC, not with the plaintiff.
In his four count counterclaim, the defendant alleged
in relevant part: (1) the defendant had entered into a
contract with North Haven Drywall, LLC, Izzo directed
the work of North Haven Drywall, LLC, Izzo failed to
complete the project and obtain a certificate of comple-
tion, and the work that was completed was not com-
pleted in a workmanlike manner in accordance with
the contract; (2) North Haven Drywall, LLC, and Izzo
made false representations to facilitate final payment
from the mortgagee of the defendant’s property, thereby
engaging in conduct that was immoral, unethical and
unscrupulous, in violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110b et seq.; (3) prior to the defendant’s engagement
of North Haven Drywall, LLC, and Izzo, North Haven
Drywall, LLC, and Izzo publicly held themselves out to
be fire and water damage restoration specialists when
they, in fact, possessed no such special skills, and this
conduct was immoral, unethical and unscrupulous, in
violation of CUTPA; and (4) the defendant contracted
with North Haven Drywall, LLC, which took possession
of the defendant’s property and began work under the
direction of Izzo, Izzo owed a duty to the defendant,
Izzo breached that duty in several enumerated ways,
and those breaches caused the defendant to sustain
damages and losses.
The plaintiff then sought to substitute ‘‘North Haven
Drywall dba N.H.D.’’ as the plaintiff in this action, and
the defendant objected to the substitution on grounds
including that the proposed substitute plaintiff had no
legal standing as it was not the party that did the work
or that filed the mechanic’s lien. The defendant also
filed a motion to dismiss the plaintiff’s complaint for,
inter alia, lack of standing,3 which the trial court granted
without objection on March 31, 2014.
On March 11, 2014, the plaintiff filed a ‘‘motion to
strike and/or dismiss the defendant’s counterclaims,’’
in which he alleged that the counterclaim, in actuality,
was directed at North Haven Drywall, LLC, and not at
the plaintiff. The defendant filed an objection in which
he argued that the plaintiff’s motion was improper
because (1) it was not accompanied by a memorandum
of law, in violation of Practice Book § 10-42, and (2) all
four counts of his counterclaim are against the plaintiff
individually and not against North Haven Drywall, LLC.
He also argued that a motion to dismiss was not the
proper procedural vehicle for the alleged failure to join
a necessary party because such a defect did not affect
the court’s subject matter jurisdiction.
On April 29, 2014, the court granted the plaintiff’s
motion without a written decision. On September 30,
2014, the defendant filed a request for leave to amend
his counterclaim, and he filed a proposed amendment.
The plaintiff objected on the ground that the counter-
claim had been dismissed on April 29, 2014, and there
was no pending case. The defendant, however, con-
tended that it was not clear whether the court had
dismissed or stricken the counterclaim, as no judgment
of dismissal had been entered. On December 2, 2014,
the court rendered a judgment of dismissal explaining
that it previously had granted the plaintiff’s motion to
dismiss the four count counterclaim. This appeal
followed.4
On appeal, the defendant claims that the court
improperly dismissed his counterclaim for two reasons,
namely, (1) that the court incorrectly ruled that all four
of counts were directed solely at North Haven Drywall,
LLC, and that North Haven Drywall, LLC, was a neces-
sary or indispensable party to each count;5 and (2) that,
even if the court correctly determined that North Haven
Drywall, LLC, was a necessary party, the failure to join
a necessary party is not jurisdictional, and the court,
therefore, should have granted the plaintiff’s motion
to strike, rather than dismiss, the counterclaim, which
would have given him an opportunity to replead. We
agree that the court improperly dismissed the counter-
claim on the ground that the defendant failed to join a
necessary or indispensable party.6
‘‘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. . . . In undertaking this review, we are
mindful of the well established notion that, in determin-
ing whether a court has subject matter jurisdiction,
every presumption favoring jurisdiction should be
indulged. . . .
‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction . . . may encounter dif-
ferent situations, depending on the status of the record
in the case. . . . Different rules and procedures will
apply, depending on the state of the record at the time
the motion is filed.
‘‘When a trial court decides a jurisdictional question
raised by a pretrial motion to dismiss on the basis of
the complaint [or counterclaim] alone, it must consider
the allegations . . . in their most favorable light. . . .
In this regard, a court must take the facts to be those
alleged in the complaint [or counterclaim], including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . .
‘‘In contrast, if the complaint [or counterclaim] is
supplemented by undisputed facts established by affida-
vits submitted in support of the motion to dismiss . . .
other types of undisputed evidence . . . and/or public
records of which judicial notice may be taken . . . the
trial court, in determining the jurisdictional issue, may
consider these supplementary undisputed facts and
need not conclusively presume the validity of the allega-
tions of the complaint [or counterclaim]. . . . Rather,
those allegations are tempered by the light shed on
them by the [supplementary undisputed facts]. . . . If
affidavits and/or other evidence submitted in support
of a . . . motion to dismiss conclusively establish that
jurisdiction is lacking, and the [nonmoving party] fails
to undermine this conclusion with counteraffidavits
. . . or other evidence, the trial court may dismiss the
action without further proceedings. . . . If, however,
the [moving party] submits either no proof to rebut the
. . . jurisdictional allegations . . . or only evidence
that fails to call those allegations into question . . .
the [moving party] need not supply counteraffidavits
or other evidence to support the complaint [or counter-
claim], but may rest on the jurisdictional allegations
therein.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) Astoria Federal Mortgage
Corp. v. Genesis Ltd. Partnership, 167 Conn. App. 183,
191–93, 143 A.3d 1121 (2016).
In the present case, the plaintiff filed a motion seeking
either to dismiss or to strike the defendant’s counter-
claim on the ground that North Haven Drywall, LLC,
was an indispensable or necessary party to each of the
four counts alleged therein. The trial court determined
that this was a matter of subject matter jurisdiction,
and it granted the plaintiff’s motion to dismiss. The
court concluded that, because the defendant had
alleged that he had contracted with North Haven Dry-
wall, LLC, throughout each count of his counterclaim,
and each count necessarily involved the LLC and/or the
plaintiff acting as the manager or member of the LLC,
the LLC was an indispensable party, and the court did
not have subject matter jurisdiction over the counter-
claim. We disagree with the court’s conclusion.
‘‘[T]he function of the motion to dismiss is different
from that of the motion to strike. [The motion to dis-
miss] essentially asserts that, as a matter of law and
fact, a plaintiff cannot state a cause of action that is
properly before the court. . . . [S]ee Practice Book
§ 10-31. By contrast, the motion to strike attacks the
sufficiency of the pleadings. Practice Book § 10-39
. . . . There is a significant difference between
asserting that a plaintiff cannot state a cause of action
and asserting that a plaintiff has not stated a cause
of action, and therein lies the distinction between the
motion to dismiss and the motion to strike.’’ (Internal
quotation marks omitted.) Pecan v. Madigan 97 Conn.
App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281
Conn. 919, 918 A.2d 271 (2007).
As this court previously has observed: ‘‘[T]he nonjoin-
der of an indispensable party . . . would create a juris-
dictional defect, and therefore require dismissal, only
if a statute mandates the naming and serving of [a
particular] party.’’ (Emphasis altered; internal quotation
marks omitted.) Yellow Cab Co. of New London & Gro-
ton, Inc. v. Dept. of Transportation, 127 Conn. App.
170, 176–77, 13 A.3d 690, cert. denied, 301 Conn. 908,
19 A.3d 178 (2011). For example, our Supreme Court
held in Simko v. Zoning Board of Appeals, 205 Conn.
413, 533 A.2d 879 (1987), that the failure to name the
town clerk in a zoning appeal deprived the trial court
of subject matter jurisdiction because General Statutes
(Rev. to 1986) § 8-8 (b), at that time, provided in relevant
part that ‘‘[n]otice of such appeal shall be given by . . .
serving a true and attested copy upon the clerk of the
municipality.’’ Id., 414 n.2. ‘‘Conversely, when a party
is indispensable but is not required by statute to be
made a party, the [trial] court’s subject matter jurisdic-
tion is not implicated and dismissal is not required.’’
Demarest v. Fire Dept., 76 Conn. App. 24, 31, 817 A.2d
1285 (2003); see D’Appollonio v. Griffo-Brandao, 138
Conn. App. 304, 313, 53 A.3d 1013 (2012); Yellow Cab
Co. of New London & Groton, Inc. v. Dept. of Transpor-
tation, supra, 176–77.
Pursuant to General Statutes § 52-108: ‘‘An action
shall not be defeated by the nonjoinder or misjoinder
of parties. New parties may be added and summoned
in, and parties misjoined may be dropped, by order of
the court, at any stage of the action, as the court deems
the interests of justice require.’’ (Emphasis added.) See
also Practice Book § 9-19;7 Hilton v. New Haven, 233
Conn. 701, 721–22, 661 A.2d 973 (1995) (plaintiffs’ failure
to join state as indispensable party does not implicate
trial court’s subject matter jurisdiction, but, neverthe-
less, pursuant to Practice Book § 99 [now § 9-18],8 trial
court may refuse to continue with case until indispens-
able party summoned).
Practice Book §§ 10-399 and 11-310 also provide that
a party’s exclusive remedy for nonjoinder or for misjoin-
der of parties is by the filing of a motion to strike. See
also Bauer v. Souto, 277 Conn. 829, 838–39, 896 A.2d
90 (2006); George v. St. Ann’s Church, 182 Conn. 322,
325, 438 A.2d 97 (1980); Kosiorek v. Smigelski, 138
Conn. App. 695, 705, 54 A.3d 564 (2012).
‘‘It is well established . . . that an action cannot be
defeated due to the nonjoinder or misjoinder of parties,
and failure to notify or join indispensable parties does
not deprive a court of subject matter jurisdiction. Gen-
eral Statutes § 52-108 . . . . Instead, the remedy for
nonjoinder of parties is by motion to strike.’’ (Internal
quotation marks omitted.) Fountain Pointe, LLC v. Cal-
pitano, 144 Conn. App. 624, 648–49, 76 A.3d 636, cert.
denied, 310 Conn. 928, 78 A.3d 147 (2013); see also
Hilton v. New Haven, supra, 233 Conn. 721.
In the present case, the defendant filed a four count
counterclaim against the plaintiff. After the plaintiff’s
complaint was dismissed, the plaintiff moved to dismiss
or to strike all four counts of the counterclaim on the
ground that North Haven Drywall, LLC, was a necessary
or indispensable party to each count. The court agreed
that the defendant’s counterclaim was focused against
the LLC and/or against Izzo acting as the manager or
member of the LLC. On that basis, the court concluded
that North Haven Drywall, LLC, was a necessary party
to the case, and that it lacked subject matter jurisdiction
over the matter.
Concluding, in accordance with our precedent, that
the failure to join a necessary or indispensable party
does not involve the court’s subject matter jurisdiction;
see General Statutes §§ 52-107 and 52-108; Practice
Book §§ 9-18, 10-39 and 11-3; Hilton v. New Haven,
supra, 233 Conn. 721–22; Fountain Pointe, LLC v. Cal-
pitano, supra, 144 Conn. App. 648–49; D’Appollonio v.
Griffo-Brandao, supra, 138 Conn. App. 313; we reverse
the judgment of dismissal and remand the case to the
trial court for further proceedings according to law.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
The plaintiff filed his action against the defendant naming him both as
Richard M. Quinn and Richard W. Quinn. The defendant filed an affidavit
with the trial court stating that he is ‘‘sometimes known as Richard W.
Quinn and mistakenly identified as Richard M. Quinn . . . .’’ To avoid confu-
sion, we refer to the defendant as Richard Quinn.
2
‘‘[T]he use of a fictitious or assumed business name does not create a
separate legal entity . . . [and] [t]he designation [doing business as] . . .
is merely descriptive of the person or corporation who does business under
some other name . . . . [I]t signifies that the individual is the owner and
operator of the business whose trade name follows his . . . .’’ (Internal
quotation marks omitted.) Youngman v. Schiavone, 157 Conn. App. 55, 56
n.1, 115 A.3d 516 (2015). In other words, the real party in interest is Izzo,
and New Haven Drywall merely is descriptive.
3
The defendant’s evidence in support of his motion to dismiss includes,
in relevant part: (1) his affidavit; (2) a copy of the contract between Richard
Quinn and North Haven Drywall, LLC; (3) a claim of lien that was filed with
the Hamden town clerk on November 21, 2012, in the name of N.H.D., LLC,
which was signed by Izzo, as a member of N.H.D., LLC, and filed against
the defendant’s property, which apparently was not served on the defendant;
(4) a claim of lien that was filed with the Hamden town clerk on December
4, 2012, by Izzo and filed against the defendant’s property; and (5) a copy
of the marshal’s return of service for the December 4, 2012 mechanic’s lien.
4
The defendant filed a motion for articulation and a motion for review.
We granted the motion for review and directed the trial court to articulate
the basis of its judgment of dismissal. On September 10, 2015, the court
issued a memorandum of decision detailing the basis of its dismissal of the
defendant’s counterclaim.
5
‘‘In the past, there had been a distinction between ‘necessary’ and ‘indis-
pensable’ parties. See Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.
Ed. 158 (1855) (defining both terms). Over time, however, this distinction
has become less pronounced; see Sturman v. Socha, 191 Conn. 1, 6, 463
A.2d 527 (1983) (recognizing that misleading nature of terms ‘has resulted
in a blurring of the distinction typically drawn between them’); and provi-
sions of our Practice Book and General Statutes currently refer only to
necessary parties. See, e.g., Practice Book §§ 9-6 and 9-24; General Statutes
§§ 8-8 (f) and 12-638n.’’ In re Devon B., 264 Conn. 572, 580 n.12, 825 A.2d
127 (2003). We use those terms interchangeably throughout this opinion.
6
Because we agree that the court improperly dismissed the counterclaim
for failure to join a necessary party, and the defendant already has filed a
request for leave to amend his counterclaim and his proposed amendments,
we need not address, at this juncture, whether North Haven Drywall, LLC,
is a necessary party.
7
Practice Book § 9-19 provides in relevant part: ‘‘Except as provided in
Sections 10-44 and 11-3 no action shall be defeated by the nonjoinder or
misjoinder of parties. New parties may be added and summoned in, and
parties misjoined may be dropped, by order of the judicial authority, at any
stage of the cause, as it deems the interests of justice require. . . .’’
8
Practice Book § 9-18 provides in relevant part: ‘‘The judicial authority
may determine the controversy as between the parties before it, if it can do
so without prejudice to the rights of others; but, if a complete determination
cannot be had without the presence of other parties, the judicial authority
may direct that they be brought in. If a person not a party has an interest
or title which the judgment will affect, the judicial authority, on its motion,
shall direct that person to be made a party. . . .’’ See also General Statutes
§ 52-107 (containing similar language).
9
Practice Book § 10-39 provides: ‘‘(a) A motion to strike shall be used
whenever any party wishes to contest: (1) the legal sufficiency of the allega-
tions 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, counter-
claim 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.
‘‘(b) Each claim of legal insufficiency enumerated in this section shall
be separately set forth and shall specify the reason or reasons for such
claimed insufficiency.
‘‘(c) Each motion to strike must be accompanied by a memorandum of
law citing the legal authorities upon which the motion relies.
‘‘(d) A motion to strike on the ground of the nonjoinder of a necessary
party or noncompliance with Section 17-56 (b) must give the name and
residence of the missing party or interested person or such information as
the moving party has as to the identity and residence of the missing party
or interested person and must state the missing party’s or interested person’s
interest in the cause of action.’’
10
Practice Book § 11-3 provides: ‘‘The exclusive remedy for misjoinder
of parties is by motion to strike. As set forth in Section 10-39, the exclusive
remedy for nonjoinder of parties is by motion to strike.’’