Opinion
CV166033492
12-16-2016
Angelo C. Aldi et al. v. Virginia Morrone, Trustee et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#107), AND MOTION TO DISMISS FORUM NON CONVENIENS (#131)
Cynthia K. Swienton, J.
This lawsuit arises out of a real estate transaction involving property located at 17 Cove Road, Westerly, Rhode Island (the Property). The plaintiffs, residents of Southington, Connecticut, purchased a one-half fee-simple interest in the Property from the owner, The Virginia Morrone Revocable Trust (the Trust). The defendants, Virginia Morrone, Trustee, and Frank A. Morrone, Jr., Trustee (the Trustees or the defendant-Trustees) are residents of the Maryland. The defendant-Trustees have filed a motion to dismiss on the ground that the court lacks personal jurisdiction over the defendant-Trustees because neither the defendant-Trustees nor the Trust has any ties to Connecticut, and the cause of action arises entirely from a Rhode Island transaction regarding the sale of real property in Rhode Island.
The defendants, Randall Realtors--Watch Hill, LLC, (Randall Realtors--Watch Hill) and Mary Krupinski, were the listing agents for sale on the Property. Randall Realtors--Watch Hill and Krupinski have filed a motion for dismiss pursuant to the common-law doctrine of forum non conveniens.
There are a number of separate offices that are under the name of Randall Realtors, e.g., Randall Realtors--Watch Hill, LLC, Randall Realtors--Waterford, LLC, Randall Realtors--Norwich, LLC, Randall Realtors--Mystic, LLC, Randall Realtors--Guilford, LLC. (Plaintiffs' Exhs. 17-21.) Each is incorporated separately. Id. In addition to the offices in Connecticut, Randall Realtors has about seven or eight offices in Rhode Island.
The plaintiffs initially objected to the filing of this motion arguing that its filing is untimely. The defendants, Randall Realtors--Watch Hill and Krupinski, correctly point out that the thirty-day deadline for filing of a motion to dismiss filed pursuant to Practice Book § § 10-30 and 10-32 does not apply to a motion to dismiss based on the theory of forum non conveniens. See, Durkin v. Intevac, Inc., 258 Conn. 454, 480, 782 A.2d 103 (2001).
The plaintiffs filed a four-count complaint alleging breach of contract (first count), misrepresentation (second count), violation of the Connecticut Unfair Trade Practices Act (CUTPA) (third count), and unjust enrichment (fourth count), all regarding the sale of the property.
Although not specifically designated, in a review of the amended complaint dated June 9, 2016, it would appear that the first and second counts are against all defendants, while the third count is against the defendants Randall Realtors--Watch Hill and Krupinski, and the fourth count is against the defendant-Trustees.
Both motions to dismiss were filed together with memoranda of law. The plaintiffs filed objections to both motions. An evidentiary hearing was held on both motions.
FACTS
The Virginia Morrone Revocable Trust was the owner of property located at 17 Cove Road, Westerly, Rhode Island. The defendant-Trustees listed the Property with Randall Realtors--Watch Hill and Krupinski for sale, and advertised it on or about January 7, 2015, with the statewide listing service of Rhode Island, Inc., (MLS). The listing on the MLS indicated that the property was " [a] rare find near the water. A 2-level house with 2 kitchens--5 [bedrooms]--3 baths." The Trustees completed a Rhode Island Real Estate Sales Disclosure form that provided specific information about the property to prospective buyers. The Trustees, together with Randall Realtors--Watch Hill and Krupinski, also completed the Rhode Island Mandatory Real Estate Relationship Disclosure form indicating that Randall Realtors--Watch Hill and Krupinski were the designated client representative[s] for the sale of the Property.
On July 5, 2015, the plaintiffs and the defendant-Trustees entered into a written agreement for the purchase and sale of the Property. On July 30, 2015, the plaintiffs paid the defendant-trustees $350,000 for the Property in accordance with their agreement, in exchange for a statutory form trustees' deed which was signed by the defendant-Trustees and notarized in Maine.
The plaintiffs in their supplemental memorandum of law in opposition to the motion to dismiss forum non conveniens state that the defendant-Trustees contradicted their sworn affidavits by stating that the closing documents were executed in Westerly, Rhode Island, and not Harpswell, Maine. In reviewing both the initial affidavits submitted with the motion to dismiss as well as the amended affidavits, the defendant-Trustees never stated they executed the documents in Westerly, Rhode Island.
On February 11, 2016, the plaintiffs received a letter from the Town of Westerly, Code Enforcement, which stated that the Property was only " an approved 3-bedroom" house, and that the town's Department of Planning and Code Enforcement had previously sent a Notice of Apparent Violation letter regarding the Property on June 29, 2015. The letter stated that " [t]he use of the property as a 2-family dwelling must cease and be converted back to a single-family dwelling." (Exh. F to the plaintiffs' amended complaint.) The plaintiffs allege that the Department of Planning and Code Enforcement had sent a letter to Krupinski on June 29, 2015, which stated that the Property " was constructed and approved for use as single-family dwelling in 1987 with a 3-bedroom onsite wastewater treatment system. [The Property] does not appear to have ever been legally converted to a 2-family dwelling with the Town [of Westerly]." (Exh. G to the plaintiffs' amended complaint.)
Affidavits submitted by Virginia Morrone and Frank A. Morrone, Jr., were admitted into evidence as full exhibits at the hearing held on the motions to dismiss. The affidavits established that both Virginia and Frank Morrone are co-trustees of the Virginia Morrone Revocable Living Trust, dated July 24, 2006, and that the Trust was the owner of the Property. The affidavits further averred that both Virginia and Frank Morrone have been residents of the State of Maryland for the past fifty plus years, the same state in which the Trust was established. Both Morrones stated that they reside part-time in Harpswell, Maine, where they executed the deed conveying the Property to the plaintiffs. Both Morrones are not now, nor have they ever been, residents of the State of Connecticut. (Plaintiffs' Exhs. 13 and 15.)
The defendant-Trustees retained an attorney to represent the Trust in the sales transaction, which attorney has his office in Westerly, Rhode Island. The HUD-1 Settlement Statement for the purchase and sales transaction listed the place of settlement at the attorney's office at 79 Franklin Street, Westerly, Rhode Island. Id.
The defendant, Randall Realtors--Watch Hill, is a limited liability company incorporated in the State of Rhode Island, with a location at 124B Bay Street, Westerly, Rhode Island. (Plaintiff's Exh. 17.) Although the plaintiffs submitted evidence of other offices under the Randall Realtors family of companies which are located in Connecticut, the actual defendant in this action is Randall Realtors--Watch Hill, LLC. (Plaintiffs' Exhs. 18-21.) The defendant, Mary Krupinski, works in Rhode Island for the defendant, Randall Realtors--Watch Hill, although she is also licensed as a real estate agent in Connecticut.
Although the plaintiffs in their objection to the motion to dismiss forum non conveniens set forth various facts regarding Krupinski's source of income stream as well as her other active listings, there was no evidence submitted at the hearing to substantiate these claims.
In the first count of the complaint, the plaintiffs allege negligence against the Trustees, Randall Realtors--Watch Hill, and Krupinski, claiming that they negligently failed or refused to amend the listing prior to the sale and closing. The plaintiffs allege that this negligence constituted a breach of contract. In the second count, the plaintiffs allege misrepresentation against all the defendants, claiming that they intentionally misrepresented the Property to the plaintiffs and the public. The third count is against Randall Realtors--Watch Hill and Krupinski, claiming violations of CUTPA. The fourth count against the Trustees sounds in unjust enrichment.
The motions to dismiss were heard together at the hearing, however shall be addressed separately below.
DISCUSSION
A. Standard for Motion to Dismiss
" 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). " Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, [a]ny defendant wishing to contest the court's jurisdiction, may do so . . . by filing a motion to dismiss within thirty days of the filing of an appearance." (Citation omitted; internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). See Practice Book § 10-30.
" Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss . . . If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction . . . [Furthermore], a motion to dismiss admits all facts well pleaded and invokes supporting affidavits that contain undisputed facts." (Citation omitted; internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26, 917 A.2d 959 (2007).
B. Motion to Dismiss for Lack of Personal Jurisdiction
" If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to provide the court's jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). It is the plaintiff's burden to prove personal jurisdiction under such circumstances because " [w]hen jurisdiction is based on constructive service, jurisdiction cannot arise solely from the facts recited in the [officer's] return . . . When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction . . . Thus, once the defendant contested personal jurisdiction . . . it was the plaintiff's burden to produce evidence adequate to establish such jurisdiction." (Citations omitted; internal quotation marks omitted.) Id., at 515-16. In some cases, " [i]n order to sustain the plaintiff's burden, due process requires that a trial-like hearing be held, in which [the plaintiff] has an opportunity to present evidence and to cross-examine adverse witnesses, unless, as with summary judgment, no genuine issues as to a material fact exists." Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).
Our Appellate Court has confirmed that it is the plaintiff's burden to prove personal jurisdiction if the defendant challenging personal jurisdiction is a foreign corporation or a nonresident individual, even when an evidentiary hearing is necessary to resolve a disputed material jurisdictional fact. See generally, Olson v. Accessory Controls & Equipment Corp., 54 Conn.App. 506, 515-18, 735 A.2d 881 (1999), aff'd, 254 Conn. 145, 757 A.2d 14 (2000). " To survive [a] motion [to dismiss], the plaintiff must make a prima facie showing through affidavits or other evidence that the defendant's conduct was sufficient for the court to exercise personal jurisdiction. Ensign-Bickford Co. v. ICI Explosives USA, Inc., 817 F.Supp. 1018, 1026 (D.Conn. 1993). However, [w]hen . . . an evidentiary hearing has been conducted, the plaintiff's burden increases such that he must prove jurisdictional facts by a preponderance of the evidence. Milne v. Catuogno Court Reporting Servs., 239 F.Supp.2d 195, 198 (D.Conn. 2002)." (Internal quotation marks omitted.) RJM Aviation Associates, Inc. v. London Aircraft Service Center, Inc., Superior Court, judicial district of New Britain, Docket No. CV 06 5000572 (June 17, 2008) (45 Conn.L.Rptr. 759, 761, ); see also Banning v. Re/Max at the Lake, Superior Court, judicial district of New Haven, Docket No. CV 13 6036005, (December 30, 2013).
Personal jurisdiction may be exercised over an out-of-state defendant if authorized by an applicable long-arm statute. Such an exercise of jurisdiction is, however, tempered by the limits of the due process clause of the fourteenth amendment. " When a defendant files a motion to dismiss challenging the court's jurisdiction, a two-part inquiry is required. The trial court must first decide whether the applicable long arm statute authorizes the assertion of jurisdiction over the [defendant]." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). " If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." Id. " [The court need] not reach [the due process inquiry if the court] lacked jurisdiction over the defendants under the applicable longarm statutes." Ryan v. Cerullo, 282 Conn. 109, 117 n.12, 918 A.2d 867 (2007). " As long as it creates a substantial connection with the forum state, even a single act can support jurisdiction." Panganiban v. Panganiban, 54 Conn.App. 634, 639, 736 A.2d 190, cert. denied, 251 Conn. 921, 742 A.2d 359 (1999).
C. Jurisdiction Under the Longarm Statute
The applicable longarm statute conferring jurisdiction over nonresident individuals, as is the case here, is General Statutes § 52-59b, which provides in relevant part: " [A] court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state . . .; (3) commits a tortious act outside the state causing injury to person or property within the state . . . if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from interstate or international commerce . . ."
The plaintiffs argue that the defendants, Randall Realtors--Watch Hill and Mary Krupinski, were the agents for the defendant-Trustees in the real estate transaction, and therefore the longarm statute applies pursuant to § § 52-59b(a)(2) and (a)(3)(A) and (B). They rely on their bald assertions set forth in their memorandum that Randall Realtors--Watch Hill " regularly does or solicits business in Connecticut and/or that Randall Realtors--Watch Hill and Krupinski " [derive] substantial revenue from . . . services rendered . . . in [Connecticut]."
Even if the court were to find that Randall Realtors--Watch Hill and/or Krupinski are agents of the defendant-Trustees, there was no evidence produced at the evidentiary hearing to substantiate the plaintiffs' claims that Randall Realtors-- Watch Hill, LLC, and/or Krupinski regularly does business in Connecticut and/or derives substantial revenue from services rendered in Connecticut. As stated above, it is the plaintiffs' burden to make a prima facie case that the defendants' conduct is sufficient to exercise personal jurisdiction, and that burden increases such that the plaintiffs must prove the jurisdictional facts by a preponderance of the evidence. See, Ensign-Bickford Co. v. ICI Explosives USA, Inc., supra, 817 F.Supp. 1026; Milne v. Catuogno Court Reporting Services, Inc., supra, 239 F.Supp.2d 198.
In Banning v. Re/Max at the Lake, supra, Superior Court, judicial district of New Haven, Docket No. CV 13 6036005, (December 30, 2013), the court granted the defendants' motion to dismiss on the basis of lack of personal jurisdiction. The plaintiffs were Connecticut residents who brought an action against a North Carolina Re/Max corporation and two real estate agents affiliated with it. The plaintiffs had purchased properties in North Carolina, and alleged in their complaint that the seller's real estate agents misrepresented the value of the property and its potential for rental income. The court found that although the defendants were subject to personal jurisdiction under Connecticut's longarm statute, in applying the two-prong test set forth in Knipple Communications v. Viking Communications, Ltd., supra, 236 Conn. 602, the second prong required an analysis of whether the exercise of personal jurisdiction would violate constitutional principles of due process under the Fourteenth Amendment. The court held that the defendants did not have the minimum contacts necessary for the court to exercise personal jurisdiction under the federal due process clause and granted the motion to dismiss for lack of personal jurisdiction.
Even if the court were to find that the defendant-Trustees, acting through their agents, Randall Realtors--Watch Hill and Krupinski, were subject to personal jurisdiction under the long-arm statute, the plaintiffs have failed to submit the evidence necessary for the court to find the defendants have the minimum contacts necessary to establish personal jurisdiction. At the evidentiary hearing, the plaintiffs produced one witness, Bruce Drake, who does a radio show with Doug Randall, a principal of Randall Realtors--Watch Hill. Drake had no knowledge of this closing or the underlying dispute. He has limited knowledge about Krupinski, testifying that he knows who she is based upon the fact that she works at Randall Realtors--Watch Hill. He also had some limited knowledge about the Randall family of companies, and that there are several offices in various locations--some in Connecticut. No evidence was presented that any tort was committed in Connecticut, no evidence of communications between any of the defendants and the plaintiffs in Connecticut, no evidence of any representations made to the plaintiffs by any of the defendants in Connecticut--all facts that the court looked to in Banning .
If the court were to find that Randall Realtors--Watch Hill and Krupinski are the agents of the defendant-Trustees, and under the longarm statute the court would have jurisdiction over the defendant-Trustees based upon the actions of their agents--Randall Realtors--Watch Hill and Krupinski, the court cannot find that the defendants maintain systematic and continuous contacts with Connecticut. Because the plaintiffs have not proven that the defendants have purposefully availed themselves of the protections of Connecticut's laws, the defendants lack the minimum contacts necessary to cloak the court with personal jurisdiction. The defendant-Trustees' motion to dismiss is granted.
The defendant-Trustees' surreply to plaintiff's opposition to defendants' motion to dismiss focused on the actions of Randall Realtors--Watch Hill and Krupinski without specifically acknowledging that they were acting as agents for the Trustees. The plaintiffs suggest in their memorandum of law in support of their reply to defendants' surreply to plaintiffs' opposition to defendants' motion to dismiss that the defendants' reliance on the facts in Banning, somehow constitutes a " party admission" that Randall Realtors--Watch Hill and Krupinski were the Trustees' " agents, " and therefore made the Trustees subject to the personal jurisdiction of the longarm statute. First, the Trustees arguments in no way constitute a " party admission." Second, as the court has stated, if the court finds that Randall Realtors--Watch Hill and Krupinski were acting as the trustees' agents, the plaintiffs still have not produced any evidence which would establish the required minimum contacts necessary for the court to exercise personal jurisdiction.
D. Motion to Dismiss--Forum Non Conveniens
On a motion to dismiss based on forum non conveniens, the defendant bears the burden of demonstrating that the case should be dismissed. See Durkin v. Intevac, Inc., 258 Conn. 454, 469, 782 A.2d 103 (2001). Such a decision is addressed to the trial court's discretion. Id., at 463-64.
" Emphasis on the trial court's discretion does not, however, overshadow the central principle of the forum non conveniens doctrine that, unless the balance is strongly in favor of the defendant . . . the [plaintiff's] choice of forum should rarely be disturbed . . . Although it would be inappropriate to invoke [a] rigid rule to govern discretion . . . it bears emphasis that invocation of the doctrine of forum non conveniens is a drastic remedy . . . which the trial court must approach with caution and restraint. The trial court does not have unchecked discretion to dismiss cases from a [plaintiff's] chosen forum simply because another forum, in the court's view, may be superior to that chosen by the plaintiff . . ." (Internal quotation marks omitted.) Id., at 464. " The [plaintiff's] choice of forum . . . should be respected unless equity weighs strongly in favor of the defendant[.]" (Internal quotation marks omitted.) Id., at 464-65.
A four-step process has been mandated for examining forum non conveniens claims. " First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case . . . Second, the court should consider all relevant private factors with a strong presumption in favor of . . . the plaintiff['s] initial choice of forum . . . Third, if the balance of private factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum . . . Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must . . . ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice." (Citations omitted; internal quotation marks omitted.) Id., at 466.
" [T]he relevant private interest factors are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to a fair trial; and (6) all other practical problems that make the trial of a case easy, expeditious and inexpensive . . . We examine each of these factors in turn, keeping in mind that, consistent with the flexibility necessary in a forum non conveniens analysis, no single factor should be given undue weight." (Citation omitted.) Id., at 467.
The Supreme Court identified the four public interest factors as follows: (1) administrative difficulties for the courts, i.e., court congestion and the court's familiarity with the applicable law; (2) imposing the burden of jury duty on the people of a community with no relationship to the litigation; (3) holding trial in the view of interested persons; and (4) having matters decided in their local forum. Id., at 463.
1. Adequate Alternative Forum
The evidence establishes that an adequate forum exists in Rhode Island, the state in which the alleged transaction occurred. The defendants Randall Realtors--Watch Hill and Krupinski have indicated that they do not contest jurisdiction in Rhode Island, and do not object to the bringing of these claims in Rhode Island.
2. Private Interests
In considering the series of factors to be examined set forth in Durkin, the court finds that the defendants would be unduly burdened to obtain access to evidence if the case remained in Connecticut. Since the entire transaction in controversy took place in Rhode Island, all witnesses relative to the defense of the case are located in Rhode Island, as well as the defendants themselves, and any other witnesses on behalf of the defendant, Randall Realtors--Watch Hill. A key witness to the case, the attorney who represented the defendant-Trustees, is located in Rhode Island. All town employees and documents are located in Rhode Island.
Although a visit to the scene may be unlikely in this matter, access would be extremely difficult, and costly, if the jury were to visit the Property.
As to the enforceability of a judgment in this matter, Rhode Island courts may not recognize the foreign judgment. " Under the full faith and credit clause, a state court must enforce and give effect to a judgment of a court of a sister state, provided, upon inquiry, the court is satisfied that its sister court properly exercise subject matter and in personam jurisdiction." Underwriters National Assurance Co. v. North Carolina Life and Accident and Health Insurance Guaranty Association, 455 U.S. 691, 704-05, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982).
The fifth private interest factor to be considered is the relative advantages and obstacles to a fair trial. Although jurors in Connecticut would be instructed as to the law, the law to be applied would be Rhode Island law. The forms and issues would be unique to Rhode Island, and would require a working knowledge of Rhode Island law.
Weighing all the private interest factors, the court finds that even with the strong presumption in favor of the plaintiffs' choice of forum, the balance is clearly in favor of trying the case in Rhode Island. It is clear that Connecticut is an inconvenient forum in this matter.
Even if the court were to consider that the private interests are equal with respect to Connecticut and Rhode Island, a cursory examination of the public interest factors would favor adjudicating the matter in Rhode Island.
Most importantly, the plaintiffs still have an opportunity to reinstate this action in Rhode Island. The real estate transaction in this matter took place on July 30, 2015.
Rhode Island has a general ten-year statute of limitations for civil actions pursuant to Rhode Island General Laws § 9-1-13(a). Therefore, the plaintiffs will be able to file this action in Rhode Island.
Because the plaintiffs' attorney is not admitted in Connecticut does not persuade the court that this state is the correct forum.
CONCLUSION
For the reasons stated above, the defendant-Trustees' motion to dismiss is granted. The defendants Randall Realtors--Watch Hill and Krupinksi's motion to dismiss forum non conveniens is also granted.