Opinion
No. FST CV 08 6001097
January 19, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS CROSS CLAIM (113.00)
I. FACTS
The plaintiff, Karyl Scott, served a summons and complaint upon the defendant, The Village at Maple Point Homeowners Association, Inc. (Maple Point) on November 21, 2008. In her complaint, the plaintiff alleged the following facts.
On February 10, 2008, the plaintiff fell down stairs, which were on property owned by Maple Point. The plaintiff alleges that she sustained injuries, losses, and damages as a result of the negligence and carelessness of Maple Point. The plaintiff stated that the stairway was defective, and Maple Point knew or should have known of the stairway's inadequate illumination and uneven risers. Additionally, the plaintiff maintains that Maple Point failed to repair the stairway, safeguard those using the area, warn of the dangerous condition, barricade or block the area, and exercise reasonable care in remedying the conditions. Further, the plaintiff alleges that Maple Point violated international building codes by failing to place a distinctive marking stripe on the stair and by failing to abide by handrail regulations.
In its answer, Maple Point raised two special defenses. First, it stated that the plaintiff's fall was the result of her own negligence and carelessness. Second, it stated that if the fall was the result of a defective condition in the stairway, then Maple Point lacked notice of that condition.
On January 2, 2009, Maple Point moved to join RMS-Maple Tree, L.L.C., RMS Construction, L.L.C., RMS Real Estate Group, L.L.C. and Randall Salvatore as cross claim defendants. Maple Point stated that if the plaintiff's allegation of a defective stairway was true, then these defects and code violations resulted from the work of the cross-claim defendants. On March 9, 2009, this motion was granted.
On March 12, 2009, Maple Point filed a cross claim in which it alleges breach of implied warranty and breach of contract against RMS-Maple Tree, L.L.C., RMS Construction, L.L.C., and RMS Real Estate Group, L.L.C. Maple Point also alleges that Randall Salvatore is liable in his personal capacity for the conduct of the other cross claim defendants.
On June 10, 2009, the plaintiff filed an amended complaint, which contained the same allegations as the original complaint against Maple Point, and included counts against RMS Construction, L.L.C. and Randall M. Salvatore. In count two, the plaintiff alleges that RMS Construction, L.L.C.'s negligence and carelessness caused the plaintiff's injuries and losses. Further, the plaintiff alleges that RMS Construction, L.L.C. violated building codes. In count three, the plaintiff made the same allegations against Randall Salvatore and stated that Salvatore is liable for the conduct of RMS Construction, L.L.C.
On June 18, 2009, Randall Salvatore, RMS Real Estate Development, L.L.C. and RMS Construction, L.L.C. moved to dismiss the cross claim for lack of subject matter jurisdiction on the ground that they do not have an interest adverse to the plaintiff, and are not necessary for a determination of the case. On July 9, 2009, Maple Point submitted an objection to the motion to dismiss.
II. DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). Pursuant to Practice Book § 10-31 in relevant part, "[t]he motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . ."
"It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 770-71, 924 A.2d 846 (2007). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
In their motion to dismiss the cross claim, Randall Salvatore, RMS Real Estate Development, L.L.C. and RMS Construction, L.L.C. argue that the court does not have subject matter jurisdiction over the claim, because the moving cross claim defendants do not satisfy the requirements of General Statutes § 52-102, which is the applicable statute for joinder of persons with adverse interests to the plaintiff. In its objection to the motion to dismiss the cross claim, Maple Point counters that "[t]he [p]roper [p]rocedure for [c]hallenging [m]isjoinder is a [m]otion to [s]trike."
Pursuant to General Statutes § 52-102, "[u]pon motion made by any party or nonparty to a civil action the person named in the party's motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein, provided no person who is immune from liability shall be made a defendant in the controversy."
"Naming an improper person as a party in a legal action constitutes misjoinder . . ." (Citation omitted.) Zanoni v. Hudon, 42 Conn.App. 70, 73, 678 A.2d 12 (1996). "The exclusive remedy for misjoinder of parties is by motion to strike." Practice Book § 11-3; Zanoni v. Hudon, supra, 73.
In Hall v. Kasper Associates, Inc., 81 Conn.App. 808, 813, 846 A.2d 228 (2004), the court stated: "Practice Book § 11-3 provides that the exclusive remedy for misjoinder of a party is a motion to strike. The defendant never moved to strike [one of the plaintiffs] as an improper party but instead filed an answer and special defense, thereby waiving any claim that [the plaintiff] was not a proper party to the proceeding." (Emphasis added.) In that case, the defendant argued that one of the plaintiffs did not have standing to bring a claim, which invoked a determination of whether the court had subject matter jurisdiction over the claim. Hall v. Kasper Associates, Inc., supra, 81 Conn.App. 811. The court found that the defendant had waived his misjoinder claim, because the defendant had already filed an answer and special defense, which precluded the ability to file a motion to strike. Id., 113. Of note, a motion to dismiss on the ground of lack of subject matter jurisdiction may not be waived at any time. Peters v. Dept. of Social Services, supra, 273 Conn. 441. The court did not mention this in its opinion and stated only that any misjoinder claim had been waived, by the defendant's filing of an answer and special defense. Hall v. Kasper Associates, Inc., supra, 813. This further underscores that a motion to strike is the sole remedy for misjoinder claims.
While the courts have allowed nonjoinder to be raised in other motions and in certain circumstances, the courts have not allowed misjoinder to be raised outside of a motion to strike. In one case, the Supreme Court reviewed the defendant's claim even though the defendant had not moved to strike the plaintiff's complaint, however, that case involved the nonjoinder of an indispensable party, rather than the misjoinder of a party. The court stated: "Although . . . the exclusive method to raise the issue of non-joinder of an indispensable party is by way of a motion to strike the plaintiff's complaint, [w]e believe that because of the definition of indispensable party and its relation to the proper disposition of an action, it is necessary for us to review the . . claim even though [the defendant] did not move to strike the plaintiff's complaint." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 723 n. 23, 661 A.2d 973 (1995).
Two recent decisions from the Superior Court lend persuasive authority to the issue of remedies for misjoinder. In one case, the court stated: "[i]n the present case, the defendants challenge only [one plaintiff's standing and not the other's]. The argument is essentially that [one plaintiff] is not a proper party to the action — that he has been misjoined. Since dismissal of an action is inappropriate when there has been a misjoinder, the motions to dismiss on this ground are denied." Witt v. Weitzman, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 09 5009458 (November 23, 2009, Bellis, J.).
In another case, the defendant moved to dismiss an action for lack of subject matter jurisdiction and argued that the defendant had not aggrieved the plaintiffs. The court denied that motion to dismiss and stated: "[T]he naming of [the party] as a [d]efendant does not deprive the court of subject matter jurisdiction over this appeal. In essence [the defendant's] claim is that he is not a proper party to this litigation. Such an argument is more suitable to a motion for misjoinder. Practice Book § 11-3 provides that: `The exclusive remedy for misjoinder of parties is by motion to strike.' `Naming an improper person as a party in a legal action constitutes misjoinder. Hartford v. Local 308, 171 Conn. 420, 429, 370 A.2d 996 (1976). The exclusive remedy for misjoinder of parties is by motion to strike.' Zanoni v. Hudon, 42 Conn.App. 70, 73[, 678 A.2d 12] (1996). A motion to dismiss should be granted solely on jurisdictional grounds. Villager Pond, Inc. v. Town of Darien, 54 Conn.App. 178, 182[, 734 A.2d 1031] (1999). Thus the proper remedy here, if [the defendant] has been improperly named as a [d]efendant, is by way of a motion to strike rather than a motion to dismiss." Mazzarella v. Tolland Planning and Zoning Commission, Superior Court, judicial district of Tolland, Docket No. CV 04 0083333 (January 19, 2005, Scholl, J.).
III. Conclusion
Randall Salvatore, RMS Real Estate Development, L.L.C. and RMS Construction, L.L.C. have made a misjoinder claim. Their exclusive remedy is by motion to strike, rather than by motion to dismiss. Accordingly, the court denies their motion to dismiss.