Opinion
No. CV 03 0566501
August 26, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This case arises from an alleged failure to pay renewal commission under a real estate listing agreement. On July 23, 2003, the plaintiff, Tyler B. Lyman, Inc. (Lyman), filed a three-count complaint against the defendants alleging breach of the listing agreement, breach of a covenant of good faith and fair dealing, and unjust enrichment. The operative complaint is the second revised complaint filed on May 4, 2004, consisting of the same three counts. The plaintiff alleges the following facts in the operative complaint. Lyman is a real estate broker. The defendants, 19 Thames Street Partnership (partnership) and the general partners in their individual capacities, are the owners of real estate located at 1-19 Thames Street in Groton, Connecticut. The terms of the listing agreement between Lyman and the partnership included a 10 percent gross rent commission for any original lease term and a 5 percent gross rent commission for any renewal. Lyman procured a tenant, Proto-Power Corporation (Proto-Power), with which the partnership executed a lease agreement including a five-year original lease term with the option to extend the lease for an additional five-year term. This lease was executed on February 12, 1997 with an original term expiration date of February 17, 2002, and the partnership paid the 10 percent commission accordingly. Proto-Power and the partnership terminated their lease on January 31, 2002, and on February 17, 2002, the partnership executed a five-year lease with Excel Energy, a purportedly new tenant. Proto-Power is still the tenant/occupant of the premises and is a wholly owned subsidiary of Utility Engineering, which is a wholly owned subsidiary of Excel CT Page 11768-gd Energy. Lyman claims to be entitled to the 5 percent renewal commission from the partnership because Excel Energy is a parent company of Proto-Power, and because Proto-Power, not Excel Energy, occupies the premises.
On November 24, 2004, the following defendants filed a motion to dismiss: the partnership, Helen Langfield, Joanna Rose, and Stanley Bergman as trustee. The motion to dismiss essentially sets forth three grounds. Both grounds appear to assert lack of subject matter jurisdiction. The first ground is that a renewal of the underlying lease does not exist and therefore a listing agreement is no longer in effect as is required under General Statutes § 20-325a, et seq. (requiring that a plaintiff's acts or services on which the action is premised must have been rendered to the defendant pursuant to a contract or authorization). The second ground is that the broker's contract, by its own terms, expired on February 2, 1997 and therefore no cause of action exists under § 20-325a, et seq. The third ground is that neither the plaintiff nor any other broker was involved in the lease at issue.
On May 13, 2004, the partnership filed a motion to strike counts one, two and three of the operative complaint which the court, Hurley J.T.R., denied due to the partnership's failure to appear at oral argument. Some of the other defendants (none of which are moving parties on the motion to dismiss) adopted the partnership's arguments in their own motion to strike, which the court, Hurley, J.T.R., denied as to counts one and two but granted as to count three. It is noted that the first two grounds asserted in the present motion to dismiss are essentially the same as the grounds for the previous motions to strike.
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings belong . . . [O]nce the question of lack of jurisdiction is raised, [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.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).
The moving parties have not stated any of the five grounds that may be asserted in a motion to dismiss as set forth in Practice Book § 10-31. Furthermore, it is noted that any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not CT Page 11768-ge raised by a motion to dismiss filed within thirty days of the filing of an appearance. See Practice Book §§ 10-30 and 10-32. The motion to dismiss was filed more than a year after each of the moving parties filed an appearance. Therefore, the only possible ground still available to the moving parties is lack of subject matter jurisdiction.
The issue presented is whether a motion to dismiss is a proper procedural vehicle to address a plaintiff's alleged failure to satisfy the requirements of § 20-325a, i.e., whether such failure creates a jurisdictional bar. In McCutcheon Burr, Inc. v. Berman, 218 Conn. 512, 590 A.2d 438 (1991), involving a real estate broker's claim to recover a real estate commission, the defendant property owners were unsuccessful in arguing that the court lacked subject matter jurisdiction because the listing agreement did not comply with § 20-325a(b). The Supreme Court stated: "An action to enforce a listing agreement is essentially a breach of contract claim, and the trial court clearly [has] subject matter jurisdiction over such a claim." Id., 527. Similarly, the court clearly has subject matter jurisdiction over claims of unjust enrichment.
Since the court has subject matter jurisdiction over the plaintiff's claims, the motion to dismiss should be and hereby is denied.
Clarance J. Jones, Judge