Opinion
CV176031418S
10-23-2017
Yorktown Heights, Inc., v. Claudette Rothman et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (#105, #107)
Irene P. Jacobs, J.
FACTS
In its February 21, 2017 complaint, the plaintiff Yorktown Heights, Inc. (" Yorktown") alleges nonpayment of a February 11, 2015 promissory note entered into with the defendant Claudette Rothman and guaranteed by the defendant Gary Rothman. On April 10, 2017, the self-represented defendant Claudette Rothman filed a counterclaim in two counts (#104). On April 17, 2017, the plaintiff Yorktown filed a motion to dismiss the counterclaim (#105) and a supporting memorandum of law (#106). On April 19, 2017, on behalf of the nonparty Edmund Schwesinger, counsel for the plaintiff Yorktown filed a motion to dismiss the counterclaim (#107) and a supporting memorandum of law (#108). No memoranda of opposition to either motion were filed. The motions were heard at short calendar on June 26, 2017.
The complaint, filed by the plaintiff on March 9, 2017, alleges the following facts. The plaintiff and Claudette Rothman entered into a written promissory note on February 11, 2015, which the plaintiff agreed to pay Claudette Rothman $50,000 and Claudette Rothman would then pay $55,000 to the plaintiff on the date of maturity, March 16, 2016. Gary Rothman agreed to serve as the guarantor for Claudette Rothman, and executed the promissory note. The defendants have not made any payments to the plaintiff as promised under the promissory note, despite repeated attempts by the plaintiff to secure repayment.
In her two-count counterclaim, the defendant Claudette Rothman alleges slander (count one) and harassment (count two) by Schwesinger as an agent on behalf of Yorktown.
DISCUSSION
Before beginning its analysis of the merits of the instant motions to dismiss the counterclaim, the court notes that the counterclaim was filed by a self-represented litigant. " [C]onstruction of a self-represented party's pleading should not focus on technical defects, but should afford the [self-represented party] a broad, realistic construction of the pleading under review." Macellaio v. Newington Police Department, 145 Conn.App. 426, 75 A.3d 78 (2013) (internal quotation marks and citation, omitted). " Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice . . . the purpose of which is to provide a just determination of every proceeding." Argentinis v. Fortuna, 134 Conn.App. 538, 39 A.3d 1207 (2012) (citations and internal quotation marks, omitted). Whitnum Baker v. Atria Management Co., LLC, Docket No. CV135014028S, Superior Court, J. D. of Stamford-Norwalk, 10/10/13, Povodator, J. In the instant case, the caption of the counterclaim identifies Yorktown Heights, Inc. and Edmund Schwesinger, Jr., as " Defendant." In count one of the counterclaim, Claudette Rothman alleges that " Defendant" made false and defamatory statements about her. In count two of the counterclaim, Claudette Rothman alleges that " Defendant" harassed her. In an unnumbered paragraph at the end of the counterclaim, Claudette Rothman alleges, " The above statements were said by the individual Defendant on behalf of his corporation, while in the course and scope of employment and/or agency for said corporation, Yorktown Heights, Inc." Affording Claudette Rothman a broad, realistic construction of the counterclaim as is due to a self-represented litigant, the court construes the counterclaim's use of the term " Defendant" to mean that the allegations of both counts of the counterclaim are made as against Yorktown and Schwesinger.
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." MacDermid, Inc. v. Leonetti, 310 Conn. 616, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 84 A.3d 895 (2014).
As to the nonparty Schwesinger, Yorktown moves for dismissal of the counterclaim on the grounds that Schwesinger was not properly served with a writ or summons and the defendants did not seek permission to serve him. This court agrees. Neither the rules of practice nor case law authorizes the defendants to assert a counterclaim against the plaintiff for the conduct of an entity that is not a party to the lawsuit. " In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . A defendant may also file a counterclaim . . . against any other party to the action for the purpose of establishing that party's liability to the defendant for all or part of the plaintiff's claim against that defendant." (Emphasis added.) Practice Book § 10-10. " The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound, Inc., 59 Conn.App. 224, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
Pursuant to Practice Book § 10-10, " [i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint." " This section is a common sense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy." (Internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 952 A.2d 56 (2008). " Our Supreme Court has instructed that the [r]elevant considerations in determining whether the transaction test has been met include whether the same issues of fact and law are presented by the complaint and the [counter] claim and whether separate trials on each respective claims would involve a substantial duplication of effort by the parties and the courts." (Internal quotation marks omitted.) South Windsor Cemetary Association, Inc. v. Lindquist, 114 Conn.App. 540, 970 A.2d 760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009). See Guild Equities, Inc. v. Harris, 3 Conn.Cir. 218, 210 A.2d 459 (App.Div. 1965), cert. denied, 152 Conn. 743, 208 A.2d 552 (1965) (defendant's counterclaim alleging slander and invasion of privacy improper in an action filed by a corporation to recover on a promissory note).
In the present action, the complaint alleges a cause of action to recover arising out of a February 11, 2015 promissory note. Alleging slander in the first count of her counterclaim, Claudette Rothman alleges that in 2016, " Defendant" (construed by the court to mean the nonparty Schwesinger) made statements to Greenwich Hyatt management about her in order to cause her to be evicted from the Hyatt, to harm her reputation, and to destroy her friendship with a guest at the Hyatt. The court finds that the allegedly slanderous statements as pled in the first count of the counterclaim are not related to the allegations of failure to pay the February 11, 2015 note as pled in the plaintiff's complaint.
In Count Two of her counterclaim, Claudette Rothman alleges in 2016 that " Defendant" (i.e. Schwesinger) harassed her and her husband to pay on the February 11, 2015 promissory note prior to its date of maturity. The promissory note, signed by defendants, states that the date of maturity was March 16, 2016. The allegations in the counterclaim specify alleged conduct by Defendant " on or about May 2016" and on or about dates in June 2016. The court finds that the allegedly harassing conduct as pled in the second count of the counterclaim are not related to the allegations of failure to pay the February 11, 2015 note as pled in the plaintiff's complaint.
CONCLUSION
For the foregoing reasons, the court grants the plaintiff's motions to dismiss the counterclaim.