Opinion
CV156052082S
01-19-2016
PGP Group, LLC aka Atlas Group v. Labossiere Builders, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#110), MOTION TO STRIKE (#111)
Robin L. Wilson, J.
FACTS
The plaintiff, PGP Group, LLC a/k/a Atlas Companies (plaintiff) commenced this action by service of writ, summons and complaint against the defendants, LaBossiere Builders LLC (LaBossiere Builders), 201 Salem Turnpike LLC (Salem Turnpike), Domenic P. Carpionato and Robert LaBossiere. The amended complaint dated August 21, 2015, is the operative complaint and alleges the following facts. The plaintiff is a Connecticut limited liability corporation with its principal place of business located in the Town of Branford, County of New Haven, State of Connecticut and is engaged in the general fencing business and related businesses.
The defendant, LaBossiere Builders is a Connecticut limited liability corporation having an office and place of business located at 34 Courthouse Square, Danielson, Connecticut. The defendant, LaBossiere Builders entered into a contract with the plaintiff for the plaintiff to provide labor and materials for the construction of improvements and site development on premises known as Briar Hill Plaza and located at 201 Salem Turnpike, Norwich, Connecticut for the cost of $71, 800. The defendant, 201 Salem Turnpike is the owner of record of the premises known as Briar Hill Plaza.
Between May 15, 2008 and June 20, 2009, the plaintiff performed the labor and provided the materials pursuant to the contract. On various dates the defendant, LaBossiere Builders made payments to the plaintiff in the aggregate amount of $28, 440 leaving an outstanding balance due and owing of $43, 360, excluding interest, to the plaintiff despite plaintiff having made due demand for same. The plaintiff further alleges that the defendants have wrongfully failed, refused and/or neglected to make the required payment under the contract when due and owing even after due demand, and the plaintiff has exercised its option to declare the contract to be in default. Count one is for breach of contract against LaBossiere Builders, count two is unjust enrichment against LaBossiere Builders, count three is unjust enrichment against 201 Salem Turnpike, counts four and five are for breach of contract and unjust enrichment, respectively, and are against Robert M. LaBossiere as a member of LaBossiere Builders LLC in accordance with the provisions of General Statutes § 34-214, and count six is unjust enrichment against Domenic Carponiato as a member of 201 Salem Turnpike, LLC.
The defendants, Robert LaBossiere, Domenic Carponiato and 201 Salem Turnpike LLC initially filed a motion to dismiss on March 12, 2015. During oral argument on the motion on July 27, 2015, counsel for the defendants specifically stated that he does not represent LaBossiere Builders LLC who does not have an appearance in the file. Also during oral argument on the motion, the plaintiff requested time to amend its complaint to allege facts demonstrating that the plaintiff's claims against Robert LaBossiere individually are not barred under § 34-214 because the defendant, Robert LaBossiere failed to comply with the procedural requirements of General Statutes § 34-212 by providing timely notice of the dissolution of LaBossiere Builders, LLC to its creditors. The court issued an order allowing the plaintiff to amend its complaint without prejudice to the defendants refiling their motion to dismiss challenging the jurisdiction of the court and/or a motion to strike challenging the legal sufficiency of the complaint.
On September 24, 2015, the defendants refiled their motion to dismiss, and in addition filed a motion to strike. Oral argument was heard on the motions, and a Standard Tallow evidentiary hearing was held regarding jurisdiction on January 11, 2016.
When issues of fact are necessary to a determination of the trial court's jurisdiction, due process requires that a trial-like hearing be held, in which opportunity is provided to present evidence and to cross-examine adverse witnesses. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . ." Practice Book § 10-30(a); St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
" A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). " Subject matter jurisdiction is the power of the court to hear and determine cases . . . We start with the premise that the Superior Court has subject matter jurisdiction . . . Th[e] determination [of subject matter jurisdiction] must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction." (Citations omitted; internal quotation marks omitted.) Grant v. Bassman, 221 Conn. 465, 470, 604 A.2d 814 (1992).
" Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule 13: " [l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.' Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 'it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.' (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. at 8, 866 A.2d 599; see also Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000), overruled in part by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003); see, e.g., Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. at 99-100, 680 A.2d 1321 (deciding jurisdictional question on pleadings alone).
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; Practice Book § 10-31(a); other types of undisputed evidence; see, e.g., Kozlowski v. Commissioner of Transportation, supra, 274 Conn. at 504 n.7, 876 A.2d 1148 (photographs and deposition testimony); Ferreira v. Pringle, 255 Conn. 330, 336, 766 A.2d 400 (2001) (lease agreement); Shay v. Rossi, supra, 253 Conn. at 139 n.7, 749 A.2d 1147 (official records of department of children and families); and/or public records of which judicial notice may be taken; Cox v. Aiken, supra, 278 Conn. at 217, 897 A.2d 71 (state employees collective bargaining agreement); the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts 'and need not conclusively presume the validity of the allegations of the complaint.' Shay v. Rossi, supra, at 140, 749 A.2d 1147. Rather, those allegations are 'tempered by the light shed on them by the [supplementary undisputed facts].' Id., at 141, 749 A.2d 1147; see also Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits; see Practice Book § 10-31(b); or other evidence, the trial court may dismiss the action without further proceedings. See, e.g., Ferreira v. Pringle, supra, at 344-45, 766 A.2d 400; Amore v. Frankel, 228 Conn. 358, 364, 367-69, 636 A.2d 786 (1994). If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations; Connecticut Hosp. Ass'n v. Pogue, 870 F.Supp. 444, 447 (D.Conn. 1994); or only evidence that fails to call those allegations into question; Ostow & Jacobs, Inc. v. Morgan-Jones, Inc., 189 F.Supp. 697, 698 (S.D.N.Y. 1960); the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. See id.
" Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts. Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004) ('[w]hen issues of fact are necessary to the determination of a court's jurisdiction . . . due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses' [internal quotation marks omitted]); Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003) (same). Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits. Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175 ('[i]n some cases . . . it is necessary to examine the facts of the case to determine whether it is within a general class that the court has power to hear'), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989). An evidentiary hearing is necessary because 'a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.' Coughlin v. Waterbury, 61 Conn.App. 310, 315, 763 A.2d 1058 (2001)." (Emphasis in original.) Conboy v. State, 292 Conn. 642, 650-53, 974 A.2d 669 (2009).
In the present case, the defendants argue that the court lacks subject matter jurisdiction because the plaintiff, who is a known creditor of defendant LaBossiere Builders LLC, was provided proper written notice of the dissolution of LaBossiere Builders LLC in accordance with § 34-212(b), and that the plaintiff failed to deliver its claim to the dissolved defendant Labosssiere by the deadline date required by that statute. The defendants argue that because the plaintiff failed to deliver its notice of claim within the deadline, its claim is barred.
General Statutes § 34-214 provides: " Any claim not barred pursuant to sections 34-212 and 34-213 may be enforced by a claimant, legal representative or assignee against: (1) The dissolved limited liability company to the extent of its undistributed assets, or (2) if the assets of a dissolved limited liability company have been distributed in liquidation, against one or more members of the dissolved limited liability company to the extent of their pro rata shares of the claim or the assets of the limited liability company distributed to them in liquidation, whichever is less, but no member's total liability for all claims under this section shall exceed the total amount of assets distributed to that member." Thus, General Statutes § 34-214 " authorizes claims against a dissolved limited liability company or its members under certain circumstances . . . In particular, such claims must not be barred under § § 34-212 or 34-213." Desir v. Clanton, Superior Court, judicial district of New London, Docket No. CV-095011887, (April 30, 2010, Cosgrove, J.) .
Section 34-213 applies to notice with respect to unknown claims against a dissolved limited liability company. Since the claim in the present case is a known claim, said provision is not applicable here.
Section 34-212 provides: "
(a) A dissolved limited liability company may dispose of the known claims against it by filing articles of dissolution pursuant to section 34-211 and following the procedures described in this section. " (b) The dissolved limited liability company shall notify its known claimants in writing of the dissolution at any time after the effective date of dissolution. The written notice shall: (1) Describe the information that must be included in a claim; (2) provide a mailing address where a claim may be sent; (3) state the deadline, which may not be fewer than one hundred twenty days from the later of (A) the effective date of the written notice or (B) the filing of articles of dissolution pursuant to section 34-211, by which the dissolved limited liability company must receive the claim; and (4) state that the claim will be barred if not received by the deadline. " (c) A claim against the dissolved limited liability company is barred if (1) a claimant who was given written notice under subsection (b) of this section does not deliver the claim to the dissolved limited liability company by the deadline or (2) a claimant whose claim was rejected by the dissolved limited liability company does not commence a proceeding to enforce the claim within ninety days from the effective date of the rejection notice. " (d) For purposes of this section, 'claim' does not include a contingent liability or a claim based on an event occurring after the effective date of dissolution."
First, it is undisputed that LaBossiere Builders LLC was dissolved in March 2011. According to the Secretary of State records it was dissolved on March 23, 2011. As previously discussed, the defendant Robert LaBossiere argues that notice of the filing of Articles of Dissolution was purportedly sent to the plaintiff on March 30, 2011. The plaintiff, on the other hand disputes that notice was sent to it, and further claims that it did not receive notice of the dissolution. The plaintiff claims that it only found out about the dissolution of LaBossiere Builders when it effectuated service of this action. Since the court's jurisdictional determination in the present case is dependent on the resolution of a critical factual dispute, namely whether the defendant provided notice to the plaintiff as required under § 34-212, an evidentiary hearing was held to resolve this dispute.
Attached to the defendants' motion to dismiss in support of the defendants' claim that it provided notice to the plaintiff, and introduced into evidence as defendant's exhibit A, is a copy of LaBossiere's vendor contact list which lists its known creditors, and a copy of a letter dated March 30, 2011 and addressed to the plaintiff, which states in relevant part:
Notice is hereby given, pursuant to the provisions of C.G.S.
Section 34-212 that LaBossiere Builders LLC has filed Articles of Dissolution with the Connecticut Secretary of State.
All creditors should present their claims against LaBossiere Builders, LLC on or before one hundred twenty (120) days after receipt of this notice or thereafter be barred as provided in C.G.S. Section 34-212(c).
Present claims to Mark E. Block, Esquire, Block, Janney & Pascal, LLC, 138 Main Street, Norwich, CT 06360.
This court seriously questions whether the defendants' purported notice satisfies the requirement in § 34-212 that " the written notice shall: (1) Describe the information that must be included in a claim . . ." The copy of the purported notice only states that LaBossiere Builders LLC filed Articles of Dissolution with the Secretary of State, the time by which creditors should present their claims and to whom the claim should be presented. It would seem logical that the defendant would want its creditor to describe the nature of the claim and or debt, and the amount said creditor claims it is owed. (Emphasis added.)
The defendant also submitted with its motion, Exhibit B, which is an affidavit of Robert LaBossiere dated September 24, 2015, in which he avers that he was the President of LaBossiere Builders, LLC and a member prior to its dissolution in 2011 and that the plaintiff was provided notice of LaBossiere Builders LLC's dissolution and given 120 days to present a claim. LaBossiere further avers that no assets were distributed to any members upon the dissolution of LaBossiere Builders, LLC.
General Statutes § 34-101(5) defines " deliver" or " delivery" as " any method of delivery used in the conventional commercial practice including delivery by hand, mail, commercial delivery and electronic transmission." The defendants did not submit any evidence to demonstrate which method of delivery was used to send notice to the plaintiff.
Attached to the plaintiff's objection to the motion to dismiss are three affidavits. An affidavit from Michael Picard, the manager of PGP Group, an affidavit from Raymond Falcoff, comptroller of PGP Group and the affidavit of Scott Putnam, the President of EF& G, Inc. dba Eagle Fence and Guardrail. EF& G, Inc. dba Eagle Fence and Guardrail is listed on LaBossiere Builder's vendor list as a known creditor.
Picard avers in his affidavit that there is a valid and existing debt owed to the plaintiff from LaBossiere Builders which has never been discharged or otherwise extinguished. At no time did he as the manager of PGP Group receive notice, written or otherwise, of the dissolution of LaBossiere Builders, LLC. Picard further avers that it has been the customary practice of PGP Group since its inception that all mail that is delivered goes directly to his office and he distributes it to the appropriate employees after he reviews it.
Falkoff avers that he is the comptroller of PGP Group and was in charge of collecting all monies owed to PGP from LaBossiere Builders. He further avers that any and all mail received by PGP Group from LaBossiere Builders, or on behalf of LaBossiere Builders would be placed on his desk for action, if any, and at no time while he has worked for PGP did he receive notice of LaBossiere Builders's dissolution or notice that it had filed Articles of Dissolution with the Connecticut Secretary of State. Falkoff avers that notice of dissolution was not provided to PGP in accordance with the law.
Scott Putnam, who is the President of EF& G Construction, who, like PGP is a known creditor of LaBossiere Builders avers that EF& G has had at least one business contract with LaBossiere Builders and its obligation to fulfill that contract remains outstanding. He further avers that notice of LaBossiere Builders LLC's filing of Articles of Dissolution was never provided to EF& G.
Picard testified at the evidentiary hearing. Picard testified that he has been the manager of PGP Group for twenty years. He testified that the debt owed by LaBossiere Builders originated five or six years ago when his company installed fencing around property owned by Robert LaBossiere. He further testified that PGP has not been paid for the debt that remains outstanding. Picard testified that he never received written notice of the dissolution of LaBossiere Builders LLC. He testified that all incoming mail ultimately comes to him. He described the process by which incoming mail is received by PGP. He testified that his receptionist who sits up front takes all of the incoming mail and any mail that is designated to certain individuals within the company she places in their baskets, all other mail, such as legal contracts and insurance is otherwise opened and placed on his desk. Any incoming mail specifically addressed to Picard she does not open, however, mail addressed to PGP Group, she opens and distributes it. Picard testified that the process he described with respect to the receipt of incoming mail has been in place for twenty years and was the process in place in 2011. Picard was shown the March 30, 2011 notice of LaBossiere Builder's dissolution purportedly sent to PGB Group, and testified that he did not receive the letter. Picard testified that the debt owed by LaBossiere Builders is a large amount of money, his company is not a large company and that he had been trying to collect the money owed since completion of the work. Picard further testified that because his company had been attempting to collect this debt since 2009, during which time he retained Attorney Sachs, if he had received a letter in March 2011 stating that LaBossiere Builders was dissolving, he would have been on the phone immediately with Attorney Sachs.
The court, having considered all of the evidence submitted, including the affidavits and other documentary evidence submitted in support of, and in opposition to the motion to dismiss, and, having considered the testimony of Michael Picard, concludes that notice of LaBossiere Builders LLC's dissolution was not provided to the plaintiff PGB Group. Thus, since notice of dissolution is required pursuant to § 34-212, and same was not provided, this court concludes that the plaintiff's claims against the defendants are not barred, and therefore this court has subject matter jurisdiction over this action. Accordingly, the defendants' motion to dismiss is denied. Since the court has concluded that it has subject matter jurisdiction over this action, it is not necessary for the court to address the merits of the defendants' motion to strike.
Defendants' conceded at the evidentiary hearing that if the court determined that it has subject matter jurisdiction, the court need not address the merits of the motion to strike.
CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss is denied.