DocketNumber: No. CV-01-0559410S
Citation Numbers: 2003 Conn. Super. Ct. 2578-ao
Judges: HURLEY, JUDGE TRIAL REFEREE.
Filed Date: 2/19/2003
Status: Non-Precedential
Modified Date: 4/18/2021
Facts
The plaintiff alleges the following facts. The Pequots, who are not a party to this action, are recognized by the Bureau of Indian Affairs of the United States and own 240 acres of real property in North Stonington, Connecticut. On December 10, 1996, the Pequots and the plaintiff formed Pequot Resorts, Inc. (Pequot Resorts), a Delaware Corporation in which the plaintiff holds forty-nine percent of the stock and the Pequots hold fifty-one percent of the stock. Pequot Resorts' purpose was to develop and manage a resort which was to be built on a section of the Pequots' land. On the same date, the plaintiff entered into a development agreement with the Pequots that gave the plaintiff the exclusive right to finance, develop, manage, construct, improve, operate, and maintain a resort destination, gaming casino, and non-gaming ventures."1 (Plaintiff's Second Revised Complaint, July 9, 2002, p. 4.) The signatory on behalf of the plaintiff was the plaintiff's then and current president, W. Ortho Smith, Jr. In or about November 1999, the defendants began to negotiate with the Pequots to finance, develop and manage a tribal casino and hotel complex to be located on tribal land CT Page 2578-ap near Ledyard, Connecticut. Pursuant to the development agreement, the plaintiff was to issue ten percent of their stock in Pequot Resorts, Inc., but did not do so because of the defendants' negotiations with the Pequots.
The defendants in this action are Andrew Gosman, Michael Gosman, Abraham Gosman, Chance Ventures, Inc. ("Chance Ventures"), David Rosow and Eastern Capital Funding, LLC ("Eastern Capital"). Andrew Gosman, Michael Gosman and Abraham Gosman2 are corporate officers in Chance Ventures. David Rosow is the chairman of Rosow Co., which is the managing agent of Eastern Capital.
Subsequent to the signing of the development agreement between the plaintiff and the Pequots, the plaintiff alleges that the defendants tortiously interfered with the agreement. Beginning in 1996, Andrew Gosman, Michael Gosman, Abraham Gosman and Chance Ventures began negotiating with the Pequots to entice the Pequots to break their agreement with the plaintiff by providing financial inducements to Pequot members even though they knew or should have known that the Pequots had entered into an exclusive agreement with the plaintiff. On April 11, 1997 and again on September 28, 1999, the Pequots and Chance Ventures entered into a development and financing agreement. In or about November 1999, David Rosow and Eastern Capital began to negotiate with the Pequots to finance, develop and manage a tribal casino and hotel complex though they knew or should have known that the Pequots had entered into an agreement with the plaintiff.
The plaintiff filed the operative complaint on July 9, 2002 consisting of eighteen counts. Counts one, four, seven, ten, thirteen and sixteen allege tortious interference and seek damages against Eastern Capital, David Rosow, Chance Ventures, Andrew Gosman, Michael Gosman and Abraham Gosman, respectively. Counts two, five, eight, eleven, fourteen and seventeen allege violations of CUTPA against the same defendants, respectively. Counts three, six, nine, twelve, fifteen and eighteen allege tortious interference claims and seek an injunction against the defendants, respectively. The defendants David Rosow and Eastern Capital ("defendants") filed their motion to strike counts one through six on August 28, 2002. The other four defendants, Chance Ventures, Andrew Gosman, Michael Gosman and Abraham Gosman, are not parties to this motion.
The Motion to Strike
"The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a CT Page 2578-aq claim on which relief can be granted. Practice Book §
Standing/Party in Interest
The plaintiff alleges the following claims against Eastern Capital Funding, LLC and David Rosow: interference with contractual, economic and business relations in counts one and four; and, violations of CUTPA in counts two and five. The plaintiff also seeks injunctive relief against Eastern Capital Funding, LLC and David Rosow in counts three and six. The plaintiff alleges the same claims and seeks the same relief against Chance Ventures, Andrew Gosman, Michael Gosman and Abraham Gosman, none of which are participating in the motion to strike. (Plaintiff's Second Revised Complaint, July 9, 2002, counts one and four.)
In the memorandum of law in support of their motion to strike, the defendants argue that the plaintiff is not a proper party to the lawsuit because it is not a party to the agreement between Pequot Resorts, Inc. and the Pequots, and, therefore, the plaintiff lacks standing. The plaintiff counters it has a significant interest because it organized Pequot Resorts, Inc., for the purpose of developing a gaming facility and non-gaming facility on property owned by the Pequots.
Whether or not a party is the proper party to bring an action, is a question of standing, and, therefore, implicates the court's jurisdiction. The proper procedural vehicle for attacking the court's jurisdiction is a motion to dismiss, and is inappropriate for a motion to strike. "Standing implicates a court's subject matter jurisdiction, which may be raised at any point in the judicial proceedings. Stamford HospitalCT Page 2578-arv. Vega,
A plaintiff has standing to bring a suit when he has a real interest in the subject matter in controversy. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he 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." (Internal quotation marks omitted.) Weinenbacher v.Duclos,
A part owner of a corporation is likely to be injured if the corporation is deprived of the benefits for which it contracted. "Standing is . . . a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of a concrete adverseness and diligent advocacy . . . If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Citations omitted; internal quotation marks omitted.) Roth v. Weston,
Tortious Interference
The plaintiff alleges that the defendants negotiated and entered into an agreement with the Pequots after inducing them to break their agreement with the plaintiff despite knowing of the agreement between the plaintiff and the Pequots. The defendants' conduct was wrong, improper, and without legal justification.
In their motion to strike, the defendants first argue that because the plaintiff seeks to have the Pequots' contractual rights adjudicated, the Pequots are a necessary and indispensable party, and that because the plaintiff has failed to join the Pequots, the court must strike the entire complaint as it pertains to them (counts one, two, three, four, five and six). (Defendant's Memorandum of Law, August 28, 2002, p. 1.) The defendants argue that the courts consider three factors in determining whether joinder of a party is necessary: (1) whether the absent party has an interest related to the controversy which as a practical matter would be impaired, (2) whether complete relief would be available to the parties already in the suit, and (3) whether a party already in the suit would be subjected to a substantial risk of multiple or inconsistent obligations. (Defendant's Memorandum of Law, September 22, 2002, pp. 4-5.) Plaintiff counters by arguing that the Pequots are not a necessary and indispensable party because there is no breach of contract claim and the claims otherwise do not require the Pequots be a party to this case.
When a movant seeks to have the entire complaint struck, if any of the nonmoving party's claims are legally sufficient, the motion to strike must be denied in its entirety. 1 Stephenson Conn.Civ.Proc. (2d. Ed. 1982 Sup.) 116e, pp. 473-74. In the present case, because the defendants move to strike the complaint in its entirety based on the failure to join a necessary and indispensable party, if the court finds any one of the claims legally sufficient then the motion to strike must be denied throughout wherever the defendants advance the same argument. Thus, if the court finds that the Pequots are not a necessary and indispensable party to any of the plaintiff's claims, the court will deny the motion to strike as to those grounds in its entirety even though that same argument CT Page 2578-at might be meritorious against other claims.
"In Sturman v. Socha,
In Hi-Ho Tower, Inc. v. Com-Tronics, Inc.,
The defendants' application of breach of contract law is erroneous. The plaintiff alleges tortious interference and not a breach of contract. Thus, case law, grounded in breach of contract law, is not analogous to the present case.
A party whose conduct is not at issue in a tortious interference claim is not necessary and indispensable, and, therefore, since the Pequots have not been alleged to have engaged in tortious interference, they are not a necessary and indispensable party. "When joinder is permitted . . . each tortfeasor may be sued severally, and held responsible for the damage caused, although other wrongdoers have contributed to it. The defendants cannot compel the plaintiff to make the others parties to the action or complain because they have not been joined." (Internal quotation marks omitted.) Biro v. Hill, supra,
The defendants' motion to strike counts one through six on the grounds that Pequots are an indispensable party, is denied as the Pequots are not a necessary and indispensable party. Since the defendant's motion to strike seeks to strike the complaint in its entirety for failure to join an indispensable party, the argument must fail as to all counts because when a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiff's claims are legally sufficient. Thus, the court need not determine, and it does not decide, whether the Pequots are an indispensable party to the plaintiff's CUTPA claims (counts two and four) or injunction (counts three and six). The defendants' "failure to join an indispensable party" argument in their motion to strike counts one through six is denied on these grounds.
Failure to State a Claim
The defendants next argue that the plaintiff fails to state a claim for tortious interference because (1) the plaintiff fails to allege that the Pequots selected the defendants through improper means; (2) the plaintiff fails to allege that the defendants knew of the agreement between Pequot Resorts and the plaintiff; and (3) no business relationship existed between the plaintiff and the Pequots because it had been destroyed by Chance Ventures, Inc. Plaintiff counters that its complaint alleges all the required elements.
The plaintiff's complaint sufficiently alleges tortious interference and the motion to strike is denied on these grounds. "[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra,
In its memorandum of law filed in support of their motion to strike, the defendants argue that the CUTPA claims allege conclusions of law. Plaintiff counters that it has alleged sufficient facts to support its CUTPA claims.
"[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA]." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp.,
Injunction
In counts three and six of its complaint, the plaintiff seeks an injunction against the defendants. The plaintiff alleges that the defendants' agreement with the Pequots causes it irreparable harm and will continue to do so unless enjoined.
The defendants attack the plaintiff's claim for injunctive relief; arguing that the claim alleges only conclusions of law, and not facts. The defendants' arguments in their memo go to the merits of whether an injunction should be granted and thus are inappropriate for a motion to strike.3
"It is well established that [a] party seeking injunctive relief has the burden of alleging . . . irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.) Lawrence Brunoli,Inc. v. Branford,
The plaintiff alleges in counts three and six that it will suffer irreparable harm and that there is no adequate remedy at law. The plaintiff incorporates by reference the facts it alleges in paragraphs one through twenty-nine in counts three and six. These facts, if proven at trial, may establish the requisite factual foundation necessary for the CT Page 2578-ax issuance of an injunction. Furthermore, the plaintiff has alleged violations of CUTPA, which if proven true might also provide the basis for the issuance of an injunction. Therefore, counts three and six are legally sufficient and the motion to strike is denied as to these grounds.
Piercing the Corporate Veil
Counts four, five and six are alleged against David Rosow. The defendants argue that the plaintiff has not pled sufficient facts to pierce the corporate veil and thereby hold David Rosow personally liable. The plaintiff counters that they have alleged sufficient facts and that if the court were to find a deficiency in the pleading, the defendant David Rosow is still personally liable because a corporate officer is liable for any torts he committed.
"It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable. Donsco, Inc. v. Casper Corporation,
Conclusion
The defendants' motion to strike is denied in its entirety for the foregoing reasons.
D. Michael Hurley
Judge Trial Referee
donsco-inc-trading-as-john-wright-inc-a-pennsylvania-corporation-and , 587 F.2d 602 ( 1978 )
Sturman v. Socha , 191 Conn. 1 ( 1983 )
Totino v. Zoning Board of Appeals , 41 Conn. Super. Ct. 398 ( 1990 )
Scribner v. O'Brien, Inc. , 169 Conn. 389 ( 1975 )
First National Bank Trust Co. v. Manning , 116 Conn. 335 ( 1933 )
Semple v. Morganstern , 97 Conn. 402 ( 1922 )