Opinion
FBTCV166054205S
03-06-2017
Rick Montanaro, Executor of the Estate of Emily Montanaro v. Salvatore Ciliberto et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Richard E. Arnold, Judge.
The defendant Salvatore Ciliberto has filed a motion to dismiss due to a lack of subject matter jurisdiction pursuant to Practice Book § 10-30 et seq. The defendant claims the plaintiff lacks standing to pursue the asserted causes of action. The defendant has filed a memorandum of law in support of the motion to dismiss, and the plaintiff has filed an objection and a memorandum of law. Oral argument was held before the court on November 14, 2016.
The co-defendant Foldy has also filed a motion to dismiss based on grounds similar to those being discussed herein. The court will address that motion in a separate decision.
The subject motion to dismiss is directed toward Counts One, Two, Six and Eight of the First Amended Complaint dated March 26, 2016. Prior to oral argument on November 14, 2016, the plaintiff filed a Second Amended Complaint dated June 13, 2016. Count One of each amended complaint alleges specific performance against defendant Ciliberto and co-defendant Foldy. Count Two of each amended complaint alleges breach of contract against Ciliberto. Count Six of both complaints allege fraud as to both Ciliberto and Foldy. Count Eight of each complaint alleged civil conspiracy against both Ciliberto and Foldy. The court addresses the defendant's Ciliberto's claim that the plaintiff lacks standing, as such claim may apply to the Second Amended Complaint, which is the operative complaint.
I Factual and Procedural History
On or about January 7, 2003, Emily Montanaro and Michael Montanaro, Sr. purchased a parcel of land in Bridgeport, Connecticut, referred to as Lot 12, as shown on a map of Nicholas Manor, said map being dated March 1960. Said purchase was made from the defendant Salvatore Ciliberto and Angela Ciliberto by way of a joint tenancy with rights of survivorship and was recorded on the Bridgeport Land Records. On or about November 22, 2002, as a condition of their ensuing purchase of Lot 12, Michael and Emily Montanaro entered into a Right of First Refusal Agreement (" Agreement") with the defendant Salvatore Ciliberto and Angela Ciliberto for the right to purchase the adjoining parcel of land, Lot 11. The " Agreement" was also recorded on the Bridgeport Land Records.
On or about November 1, 2012, Michael Montanaro passed away, and right to the first refusal passed to Emily Montanaro, the surviving spouse of Michael Montanaro, Sr. Angelina Ciliberto died on or about January 6, 2014, and title to Lot 11 passed by operation of law to her surviving spouse, Salvatore Ciliberto, along with the obligations contained in the right of first refusal, as they pertained to Emily Montanaro. Emily Montanaro then died on or about June 18, 2014.
On or about November 14, 2014, the defendant, Salvatore Ciliberto sold Lot 11 to the defendant, Thomas Foldy, for a sales price of $50, 000.00, and said deed from Ciliberto to Foldy was recorded on the Bridgeport Land Records. Ciliberto also filed a sworn affidavit on the Land Records pursuant to General Statutes § 47-12a, stating he was not aware of the existence of any person or entity claiming to be the designated successor of decedents Emily Montanaro and Michael Montanaro, Sr., as to the right of first refusal (" Agreement") with respect to the premises known as 326 Folino Drive, Bridgeport, Connecticut. The affidavit contained copies of the death certificates of Michael Montanaro, Sr. and Emily Montanaro. The death certificates list the name and address of the Montanaro's son Richard Montanaro.
The plaintiff, Richard Montanaro, Executor of the Estate of Emily Montanaro has filed an eight-count complaint against Salvatore Ciliberto and Thomas Foldy. Count One alleges a claim for specific performance as to Ciliberto and Foldy. Count Two is a breach of contract claim against Ciliberto. Count Three claims specific performance again; this time against Foldy only. Count Four alleges breach of contract against Foldy. Count Five alleges tortious interference with a contract against Foldy. Count Six alleges Fraud as to Foldy and Ciliberto. Count Seven alleges that Foldy " aided a tort." Count Eight alleges a civil conspiracy against Foldy and Ciliberto. The claim for relief requests specific performance of the right of first refusal, damages, punitive damages and attorneys fees among other things.
" The availability of specific performance is not a matter of right, but depends rather upon an evaluation of equitable considerations." Morris v. Costa, 174 Conn. 592, 599, 392 A.2d 468 (1078); Parkway Trailer Sales, Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 166 A.2d 710 (1960). " The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 18-19, 420 A.2d 1142 (1979); Sidor v. Kravec, 135 Conn. 571, 573-74, 66 A.2d 812 (1949). Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).
The plaintiff's claim is based upon his argument that ownership of the right of first refusal to Lot 11, passed to the heirs of Emily Montanaro in accordance with the terms of her Last Will and Testament. Notwithstanding this fact, Salvatore Ciliberto failed to provide notice to the plaintiff of the potential sale of Lot 11 to Foldy, despite such a provision in the Right of First Refusal Agreement. Then Ciliberto sold the lot to Foldy without any notice to the plaintiff or to other heirs of Emily Montanaro, as required by the Agreement.
The defendants have moved to dismiss the plaintiff's complaint due to a lack of subject matter jurisdiction, arguing that the plaintiff lacks standing. The defendants claim the right of first refusal agreement was simply a contract between Ciliberto and his wife and Michael and Emily Montanaro, which was never assigned by either Michael Montanaro, Sr. or Emily Montanaro to the plaintiff or anyone else, despite the fact that the right of first refusal, by its terms, was freely assignable. The defendants argue that the right of first refusal agreement does not state that it was contemplated to pass to Michael and Emily Montanaro's heirs, and thus, does not pass to Emily Montanaro's estate or her heirs by operation of law.
II
Standard of Law
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." (Internal quotation marks omitted.) Bacon Construction Co. v. Department of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). The purpose of the motion is to attack the " jurisdiction of the court [by asserting] that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Directory Assistants, Inc. v. Big Country Vein, L.P., 134 Conn.App. 415, 419, 39 A.3d 777 (2012). A motion to dismiss " admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010).
" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). " [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Intentional quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). " 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 state of the proceedings, including on appeal." Peters v. Department of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). " When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss it must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (1997). " Standing is the legal right to set judicial machinery in motion . . . If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." City of Middletown v. P& G Enterprises Ltd. Part., 45 Conn.Supp. 435, 437, 718 A.2d 90 (1998).
III
Discussion
The present dispute involves rights to a first right of refusal to purchase real property. " [A] right of first refusal is known more technically as a preemptive option, as a right of preemption, or simply as a preemption. A right of pre-emption is a right to buy before or ahead of others; thus, a pre-emptive right contract is an agreement containing all the essential elements of a contract, the provisions of which give to the prospective purchaser the right to buy upon specified terms, but, and this is the important point, only if the seller decides to sell. It does not give the pre-emptioner the power to compel an unwilling owner to sell, and therefore is distinguishable from an ordinary option . . . Thus, the purpose of a right of first refusal is not to allow the holder to compel the property owner to sell the property at a designated price, as may be the case with the existence of an option . . . Rather, the purpose is to allow the holder of the right to be notified when the owner intends to sell, or has accepted an offer, which, in most cases, will be presumptively the fair market value of the property, and to allow the holder to purchase the property under identical terms." (Citations omitted; emphasis in original; internal quotation marks omitted.) Tadros v. Middlebury Medical Center, Inc., 263 Conn. 235, 240-41, 820 A.2d 230 (2003). " [T]he court] must consider the fact that [when a party is initially granted a right of first refusal, it acquires] an equitable property interest in the Property . . . [T]he preemptive right was the product of a bargained-for exchange voluntarily entered . . . As such, one who enters into a contract must cooperate in good faith to carry out the intention the parties had in mind when it was made . . ." (Citations omitted.) David A. Bramble, Inc. v. Thomas, 396 Md. 443, 460-62, 914 A.2d 136 (2007). " The right [of first refusal] is a valuable contract right . . ." Matson v. Emory, 36 Wn.App. 681, 683, 676 P.2d 1029 (1984). Like any other contract, the right of first refusal clause must be interpreted in light of all the facts and circumstances surrounding it. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974).
The defendant Ciliberto contends that the plaintiff, who is the Executor of the Estate of Emily Montanaro, lacks standing to pursue the causes of action asserted. " [A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . [Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time . . ." (Citations omitted.) Lewis v. Slack, 110 Conn.App. 641, 643, 955 A.2d 620 (2008). " Standing . . . is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Citations omitted; internal quotation marks omitted.) Id. at 643-44. " Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction." Id., at 644.
" Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." AvalonBay Communities, Inc. v. Town of Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).
It is the defendant's position that the right of first refusal agreement is a contract, that by its terms was assignable. However, neither the decedent Michael Montanaro, Sr. or the decedent Emily Montanaro, ever assigned their rights to anyone. The written right of first refusal did not contain any terms or language that the rights contained therein would pass to the heirs of either Michael or Emily Montanaro, and thus, those rights did not pass by operation of law. Therefore, the right of first refusal agreement ceased to be enforceable.
The plaintiff, on the other hand, argues that the rights of Michael and Emily Montanaro contained in the right of first refusal to purchase Lot 11 from Ciliberto passed from Michael Montanaro to Emily Montanaro and, thereafter, to the heirs of Emily Montanaro by operation of law. The plaintiff claims that Ciliberto failed to provide notice of his intention to sell Lot 11 to the co-defendant Foldy, despite having knowledge of the name and address of the plaintiff, who is a next of kin and an heir of Emily Montanaro.
The Right of First Refusal Agreement provides in relevant part:
Before Lot No. 11 may be sold or otherwise transferred (including transfer by gift or operation of law), the Buyers or their assignee(s) shall have a right of first refusal to purchase Lot No. 11 on the terms and conditions set forth in this Section (the 'Right of First Refusal').
The Right of First Refusal Agreement also provides:
The Sellers shall (a) deliver to the Buyers a written notice (the 'Notice') stating (I) their bona fide intention to sell or otherwise transfer Lot No. 11; (ii) the name of each proposed purchaser or other transferee ('Proposed Transferee'); (iii) the bona fide case price or other consideration for which the Sellers propose to transfer Lot 11 (the 'Offered Price') and (iv) the material terms and conditions of the proposed transfer (the 'Offer Terms') and (b) offer Lot No. 11 at the Offered Price and on the Offered Terms to the Buyers or their assignees.
The plaintiff argues that it is a longstanding precedent that upon a testator's death, the title to real property devised in her will vests in the devisees, subject to the control of the court and possession of the executor during the administration of the estate. See Scott v. Heinonen, 118 Conn.App. 577, 583-84, 985 A.2d 358 (2009); Lundberg v. Kovacs, 172 Conn. 229, 232 n.1, 374 A.2d 201 (1977). Therefore, as the Executor of the Estate of Emily Montanaro, the plaintiff argues he has the ability to commence this lawsuit for the purposes of protecting the assets of the estate for both heirs and creditors of the estate. The plaintiff also argues that if the Right of First Refusal is personal property, he still has standing to commence the lawsuit because under Connecticut law " legal title to personal property passes to the executor or administrator, and such property is to be used for the payment of debts and the remainder distributed to the heirs." (Internal quotation marks omitted.) Dinan v. Patten, 317 Conn. 185, 208, 116 A.3d 275 (2015).
The court finds that the right of first refusal agreement entered into between Emily Montanaro and Michael Montanaro, Sr. and Salvatore Ciliberto and Angela Ciliberto was a contract. JLJ Associates, Inc. v. Persiani, 41 Conn.Supp. 79, 550 A.2d 650 (1988); Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974). A party that has been validly assigned a contract right has standing to enforce that right. See Second Exeter Corp. v. Epstein, 5 Conn.App. 427, 430, 499 A.2d 429 (1985), cert. denied, 198 Conn. 802, 502 A.2d 932 (1986). " It is hornbook law . . . that an assignee [of a contract right] stands in the shoes of the assignor." (Internal quotation marks omitted.) Shoreline Communications, Inc. v. Norwich Taxi, LLC, 70 Conn.App. 60, 72, 797 A.2d 1165 (2002). However, " it is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof [lacks standing to] sue to enforce the promises of the contract." (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993) . . ." [A] third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party." Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981).
" Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual communications is a question of law . . . In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together . . . The contract must be construed to give effect to the intent of the contracting parties . . . This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained . . . [I]ntent . . . is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . [Where] . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law." (Citations omitted; internal quotation marks omitted.) Schwartz v. Family Dental Group, P.C., 106 Conn.App. 765, 771, 943 A.2d 1122, cert. denied, 288 Conn. 911, 954 A.2d 184 (2008).
The question of whether a contract includes an ambiguity requiring the court to look beyond the four corners of the contract is also governed by well-established principles. " Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous . . . If a contract is unambiguous within its four corners, intent of the parties is a question of law . . . When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact . . ." (Internal quotation marks omitted.) McCarthy v. Chromium Process Co., 127 Conn.App. 324, 330, 13 A.3d 715 (2011).
There are no ambiguities in the terms of the right of first refusal agreement. The agreement clearly states that " Before Lot No. 11 may be sold or otherwise transferred (including transfer by gift or operation of law), the Buyers or their assignee(s) shall have a right of first refusal to purchase Lot No. 11 on the terms and conditions set forth in this Section (the 'Right of First Refusal')." The terms heirs or successors are never mentioned and are no terms regarding succession. The rights of first refusal to purchase Lot 11 were personal to Emily Montanaro and Michael Montanaro, Sr. and their designated assignee. Lacking an assignment of these rights during either of their lifetimes, they did not receive a contract right or cause of action which could survive to their executor. See. Hartford-Connecticut Trust Co. v. Divine, 97 Conn. 193, 198, 116 A. 239 (1922). The right to the first refusal to purchase Lot 11 was personal to the Montanaros and does not survive their deaths so as to become exercisable by their heirs and successors in interest. 80 Am.Jur.2d 549, 550; see also 96 C.J.S. Wills § 1104, p. 834; 18 A.L.R.4th, pp. 579-84; In Re Cianciulli, 159 App.Div.2d 569, 552 N.Y.S.2d 430 (1990); In Re Estate of Lemke, 216 N.W.2d 186 (1974); In Re Estate of Maguire, 204 Kan. 686, 466 P.2d 358, mod on other grounds, 206 Kan. 1, 476 P.2d 618 (1970); Williams v. Cowan, 226 Ga. 319, 174 S.E.2d 789 (1970); Brown v. Brown, 1949- NMSC 048, 53 N.M. 379, 208 P.2d 1081 (1949); Bank & Trust Co. v. Williams, 46 Ariz. 20, 46 P.2d 645 (1935); Weitzmann v. Weitzmann, 87 Ind.App. 236, 161 N.E. 385 (1928); Adams v. Adams, 95 W.Va. 187, 120 S.E. 590 (1923).
The court finds that the plaintiff, who is the Executor of the Estate of Emily Montanaro, lacks the requisite standing to prosecute the present action. Therefore, the court lacks subject matter jurisdiction. The defendant's motion to dismiss is hereby granted.