Opinion
No. HHD X04 CV-06-4034586 S
March 3, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS AMENDED THIRD PARTY COMPLAINT (#285)
The court heard oral argument on January 19, 2010 concerning the third party defendant, Stuart R. Norman, Jr.'s (Norman) motion to dismiss the amended third-party complaint brought by defendant/third-party plaintiff Lee Yaworski. After consideration, the court issues this memorandum of decision.
I BACKGROUND
The plaintiff, conservator of the estate of James Yaworski, II, brought this action against the defendants concerning the sale of various companies and the settlement of claims involving them. Pursuant to Practice Book §§ 10-10 and 10-11, and General Statutes § 52-102a, by motion to implead (#248), defendant Lee Yaworski sought permission of the court to implead Norman, who had acted as attorney for James Yaworski, II. Absent objection, the court granted the motion to implead by order dated February 20, 2009. In his third party complaint, Lee Yaworski alleged that, to the extent that he was found to be liable to the plaintiff, he was entitled to be indemnified by Norman.
Subsequently, by memorandum of decision dated September 18, 2009 (#279), the court granted Norman's motion to strike the third party complaint, concluding that, in the absence of a legal duty owed by Norman to Lee Yaworski, there was no basis for a claim for indemnification. The amended third party complaint was filed on September 25, 2009 (#281).
According to the amended third party complaint, paragraph 1, defendant Lee Yaworski was appointed as conservator of the estate of James Yaworski, II by the Canterbury Probate Court in October 1996. Norman was appointed personal attorney for James Yaworski, II by the same court. See amended third party complaint, ¶ 5. In 2004, Lee Yaworski resigned as conservator in light of a petition seeking his removal. See amended third party complaint, ¶ 1.
Lee Yaworski, as "next of friend of James Yaworski, II," now seeks to bring a cause of action against Norman. See amended third party complaint, ¶ 2. He alleges that, as James Yaworski, II's personal attorney, Norman owed a duty of care to James Yaworski, II. See amended third party complaint, ¶ 6. He alleges that Norman never objected to any of Lee Yaworski's actions as conservator, nor did Norman inform him that his actions were improper, violative of his duties, or constituted self-dealing. Further, he alleges that Norman did not advise him not to engage in any of the transactions which are now alleged by the plaintiff to have been improper. Lee Yaworski asserts that he relied on Norman's approval of various transactions, based on Norman's superior knowledge, and the position of trust which Norman held. See amended third party complaint, ¶¶ 15-16, 19.
Lee Yaworski also alleges that the allegations made by the present conservator point to a breach of the duty of care owed by Norman to James Yaworski, II, but the plaintiff has not sued Norman. See amended third party complaint, ¶¶ 20-21. He also alleges that James Yaworski, II is incapable of protecting James Yaworski II's interest and the plaintiff, as the present conservator, is failing to protect that interest by failing to sue Norman. See amended third party complaint, ¶ 22. On behalf of James Yaworski, II, as next of friend, Lee Yaworski alleges that Norman breached his duty of care to James Yaworski, II and seeks money damages. See amended third-party complaint, ¶ 26.
II DISCUSSION
In his motion to dismiss, Norman contends that the court lacks subject matter jurisdiction over the amended third party complaint because (1) it does not state a third party cause of action; and (2) Lee Yaworski as next friend of James Yaworski, II is not a party to this lawsuit and cannot be a third party plaintiff. He seeks dismissal of the amended third-party complaint.
In response, Lee Yaworski concedes that the impleader statute, General Statute § 52-102a, does not contemplate next of friend status. He argues that his amended third-party complaint is not within its purview and is not subject to the impleader statute at all. He asserts that Norman was properly impleaded, and the court has subject matter jurisdiction over Norman, as Lee Yaworski's new complaint relates to the original action. He also argues that suit may be brought by a next friend who does not have to be appointed to act in that capacity.
Section 52-102a provides, in relevant part, "(a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded."
Practice Book § 10-11 contains, in relevant part, nearly identical language: "(a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff's claim against him or her."
In his objection (#289), page 6, he states, "Norman is correct that Lee was only granted permission to serve a third-party complaint against Norman under the impleader statute. However, this has no bearing on Lee as next friend." He claims that Norman's argument attempts to exalt form over substance, citing Martin Printing, Inc. v. Sone, 89 Conn.App. 336, 344, 873 A.2d 232 (2005), where the court stated, "[o]ur Supreme Court has repeatedly eschewed applying the law in such a hypertechnical manner so as to elevate form over substance." (Internal quotation marks omitted.) That matter did not concern the impleader statute. Rather, there the Appellate Court concluded that the defendant had not demonstrated that the trial court abused its discretion in ordering the plaintiff to amend its complaint, post-trial, to conform to the evidence. See id.
In a similar context to that which is presented here, in Commissioner of Environmental Protection v. Lake Phipps Land Owners Corp., 3 Conn.App. 100, 102, 485 A.2d 580 (1985), the Appellate Court affirmed the trial court's decision to treat a motion to dismiss a third-party complaint as a motion to strike, and to dismiss it. The standard of review on a motion to strike is well established. "[A] motion to strike challenges the legal sufficiency of a pleading . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [W]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
"For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). A motion to strike may be utilized to "trigger the trial court's determination of a dispositive question of law." Vertex v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). Whether the plaintiff properly has alleged the elements of a claim is a question of law that should be resolved by a motion to strike. See Marr v. WMX Technologies, Inc., 244 Conn. 676, 681, 711 A.2d 700 (1998).
In affirming, the Appellate Court, in Commissioner of Environmental Protection v. Lake Phipps Land Owners Corp., supra, 3 Conn.App. 102, stated, "[t]he third party complaint was correctly dismissed because, by its very language, it failed to meet the requirements of General Statutes 52-102a and Practice Book [10-11] . . . Connecticut General Statutes 52-102a(a) provides in pertinent part that `[a] defendant in any civil action may move the court for permission . . . to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.' An impleading party has the burden of alleging facts sufficient to bring an action within the requirements of the statute . . . As a fundamental and threshold requirement, a third party plaintiff must allege that the third party defendant is or may be liable to the third party plaintiff for all or part of the plaintiff's claim against him." (Citations omitted; footnote omitted.) Id. See Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989) ("It is evident that the language of 52-102a, which describes a third party who may be liable to the defendant for all or part of the claim, refers to causes of action for indemnity and contribution respectively.") (Emphasis in original.)
More recently, in Lisinski v. New London, Superior Court, judicial district of New London at New London, Docket No. CV 03 0564377 (October 4, 2005, Jones, J.) ( 40 Conn. L. Rptr. 43), the court also treated a motion to dismiss as a motion to strike, and similarly concluded that "[i]t bears repeating that § 52-102a contains explicit language in reference to causes of action for contribution and indemnification . . . Furthermore, a claim set forth in a third-party complaint that is an independent claim or a distinct direct cause of action against a third-party defendant that does not attempt to pass on liability to the third-party defendant which was asserted against the third-party plaintiff is an inappropriate use of the impleader statute or rule." (Citation omitted.) See Teulon v. Johnson, 36 Conn.Sup. 134, 136, 414 A.2d 818 (1980) ("In view of the clear wording of both [Practice Book § 10-11] and [§ 52-102a], reinforced by the history of third-party practice, it must be held that, insofar as the amended third-party complaint does not set forth the liability of the third-party defendant to the third-party plaintiffs, the motion to strike must be granted.").
Here, the amended third-party complaint does not allege that Norman is liable to Lee Yaworski for all or part of the plaintiff's claim against Lee Yaworski. Rather, he purports to bring a claim on behalf of James Yaworski, II. His position contradicts his previous motion to implead; in support of that motion he argued that § 52-102a was applicable. The court's February 20, 2009 order did not give him permission to serve a third party complaint on Norman as next friend of James Yaworski, II.
Accordingly, treating the motion to dismiss as a motion to strike, the court concludes that the amended third-party complaint is legally insufficient. The court need not consider Norman's other arguments, including whether Lee Yaworski may act here as next friend of James Yaworski, II.
CONCLUSION
For the foregoing reasons, the court treats the motion to dismiss as a motion to strike. Since the amended third party complaint is legally insufficient, it is stricken. It is so ordered.