Opinion
No. CV 07 4007115
December 22, 2009
MEMORANDUM OF DECISION RE AMENDED MOTION TO DISMISS #149
This action is a declaratory judgment action filed under and pursuant to the authority of General Statutes § 52-29. The plaintiff Richard Shenkman-Tyler, was, at the time of the institution of this action, married to the defendant, Nancy Tyler. In this action, he alleges that he and the defendant, Tyler, purchased homeowner's insurance from the defendant, Central Mutual Insurance Company (CMIC), to cover residential property located at 29 South Washington Street, East Lyme, Connecticut. The complaint is silent as to who is the owner of the South Washington Street property, but asserts that originally the plaintiff and the defendant, Tyler, were owners of the insurance policy and loss payees under the terms of the policy. The complaint further alleges that on March 5, 2007, while that policy was in full force and effect, the residential property and its contents were destroyed by fire. Prior to the date of the fire loss, the plaintiff and the defendant, Tyler, were in the process of dissolving their marriage. The complaint alleges that the defendant, Tyler, unilaterally removed the plaintiff as a named insured under the policy and asserted her right that should any proceeds be payable under the terms of the policy, that she should receive all of such proceeds and the plaintiff nothing.
The plaintiff asserts that he had equal rights to any proceeds paid by the insurer under the terms of the policy. The complaint requests a declaratory judgment determining "1) [w]hether or not the plaintiff has a right to receive proceeds under the terms of the policy; 2) [t]hat payment should be made by defendant CMIC under the terms of the policy for all losses incurred as a result of the destruction and/or damage to the residential structure and its contents caused by the fire of March 2007, as provided by the policy."
On July 21, 2009, the defendant, Tyler, filed an amended motion to dismiss this action claiming that the court does not have subject matter jurisdiction to entertain these claims. She claims that there is no justiciable issue as to the plaintiff's status or entitlement to the property or any policy proceeds, that the plaintiff has no standing to bring this declaratory judgment action and that the plaintiff is collaterally estopped from raising the issues raised in this declaratory judgment action. On August 19, 2009, the plaintiff filed an objection to the motion to dismiss, claiming that the issue of whether he was a named insured at the time of the fire was not previously litigated, and that he has an interest in the declaratory judgment for the purposes of standing. On September 10, 2009, the defendant, CMIC, filed a motion to dismiss on substantially the same grounds as those raised by the defendant, Tyler.
CHRONOLOGICAL AND PROCEDURAL HISTORY OF THIS LITIGATION AND RELATED LITIGATION
In order to address the issues raised by the amended motion to dismiss, it is important to provide a context within which to evaluate these issues. This context is supported by affidavits filed with the court, and further the court taking judicial notice of past and pending court proceedings.
The plaintiff and the defendant, Tyler, were married on September 13, 1993. On or about August 24, 1995, the defendant, Tyler, took title in her name to property known as 29 South Washington Street, East Lyme, Connecticut. The defendant, Nancy Tyler, has been and is the sole owner of property located at 29 South Washington Street, East Lyme, Connecticut for all purposes and times relevant to this litigation.
On or about July 19, 2006, the defendant, Tyler, initiated an action in the Hartford Superior Court seeking a dissolution of her marriage to the plaintiff on the grounds of an irretrievable breakdown.
On March 5, 2007, while the plaintiff was the sole occupant of the premises at South Washington Street, the property was totally destroyed by fire.
On May 10, 2007, the plaintiff was arrested on charges of arson in the first degree and reckless endangerment in the first degree in relation to the May 5, 2007, fire. (Docket No. KNL CR07 0291943-T.) Charges are currently pending in the New London Judicial District.
On July 2, 2008, a memorandum of decision was issued in the dissolution action, Tyler v. Tyler, Superior Court, judicial district of Hartford, Docket No. FA 06 4024421 (July 2, 2008, Simon, J.). In this memorandum of decision, the court determined that the mortgage and deed to the property at 29 South Washington Street were in the defendant, Tyler's, name alone. The trial court noted that the plaintiff in this case "has threatened to continue his pursuit of the wife with appeals and further proceedings until all of her assets are exhausted." (Memorandum of Decision, p. 12.) The court further found that the plaintiff has "pursued frivolous motions and forced the plaintiff into court to seek compliance with the basic rules of discovery and production. The defendant has defied the court by refusing to provide the wife with any court-ordered materials . . . His [Richard Shenkman-Tyler's] intent, as revealed in exhibits is clear; he will expend all resources to ensure that his wife will be in continued litigation if she pursues the divorce. He has harassed his wife with a barrage of e-mails and phone calls. His phone calls to her are chilling and morose. His language is disgusting and insulting. His behavior is obsessive and cruel. His threats are unrelenting and unprovoked." (Memorandum of Decision, p. 13.)
The court, Simon, J., entered the following orders that are germane to the issues raised by this motion to dismiss. "Wife shall retain sole title and ownership to property at 29 South Washington Street, East Lyme, Connecticut, free from any claims of the husband. Wife shall be entitled to any and all proceeds from the pending fire insurance loss claim as made to the structure, contents, loss of use and any other claims that may be made under the terms of the policy. The court also awards the wife all of the husband's interests in said policy, if any exists. Should husband receive any proceeds from the pending litigation brought against the carrier as to any and all claims that may be made under the policy, including husband's claim of bad faith, the same shall be deemed to be the property of the wife. This order is an assignment to the wife of any interest the husband may have in any litigation involving this property. Wife shall remain solely responsible for the taxes, insurance and currently existing mortgage encumbering the referenced property."
In July 2008, the plaintiff appealed the decision of the trial court with regard to the dissolution of his marriage.
On October 10, 2008, after the dissolution decision was filed, the plaintiff herein filed an additional lawsuit solely against the defendant, CMIC. That lawsuit is pending in the Superior Court for the Judicial District of New London, Docket No. CV 08 5009740. In this action, the plaintiff, referencing this litigation, asserts that CMIC breached its contract of insurance with the plaintiff by filing special defenses that he had no insurable interest in the subject property, and further that if he was an insured that he was disqualified from coverage. In the second count of the 2008 complaint, the plaintiff alleges a breach of the covenant of good faith and fair dealing because CMIC failed to evaluate the fire loss objectively, failed to make a reasonable investigation, refused coverage under the policy without having a factual or legal basis for doing so, failed to investigate the origin of the fire and refused coverage under the policy without having conducted any independent investigation of the origin or cause of the fire. In the third court, the plaintiff asserts that CMIC has violated the Connecticut Unfair Trade Practices Act (CUTPA) because of misrepresentations, an inadequate investigation, failing to promptly investigate, refusing to pay claims and not attempting in good faith to effectuate prompt, fair and equitable settlement of the claims. Finally, the plaintiff asserts that CMIC has negligently caused the plaintiff emotional distress.
In the action against CMIC, the property is referred to as "29 South Washington Street, Niantic, Connecticut." In this action, however, the property is referred to with the East Lyme address. The property is referred to on the insurance policy by the Niantic address. Regardless, it is undisputed that the properties are one in the same.
These claims were asserted after the plaintiff had been charged with arson with regard to the South Washington Street property, and further subsequent to the dissolution decision in which any right that the plaintiff might have had in this property was transferred or assigned to the defendant, Tyler.
The defendant CMIC has filed a motion to dismiss the 2008 action and that motion to dismiss is pending before this court.
On July 7, 2009, the Appellate Court rejected the appeal filed by the husband in the dissolution action and affirmed the trial court decision. See Tyler v. Shenkman-Tyler, 115 Conn.App. 521, 973 A.2d 163 (2009).
The plaintiff herein sought review of the Appellate Court decision in the dissolution action before the Supreme Court. The petition for certiorari was denied. See Tyler v. Shenkman-Tyler, 293 Conn. 920, 979 A.2d 493 (2009). Subsequent to the denial of certiorari, the defendants in this case filed the referenced motions to dismiss.
It is within the context of these facts that the court will evaluate the defendants' challenges to the subject matter jurisdiction of this court.
LAW OF 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.) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33.
"When a [trial] 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 . . . 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.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"[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).
DISCUSSION
The defendant, Tyler, argues that there is no justiciable issue as to the plaintiff's entitlement to any rights in the property because the issue was previously decided in the dissolution proceeding. Additionally, the defendant, Tyler, argues that the plaintiff has no standing to bring this declaratory judgment action because he does not have a specific, personal and legal interest in the action, and that the plaintiff is barred from bringing the action under the doctrine of collateral estoppel because a determination of the issue was made in the dissolution proceeding. The plaintiff responds that the precise issue of whether he was insured at the time of the fire was not determined by the dissolution proceeding and that determination of the issue may have tax consequences, giving him a personal interest in the action.
"When considering whether a claim is barred by the doctrine of collateral estoppel, the court usually must determine whether the issue that is the subject of the claim was actually litigated and necessarily determined in a prior action . . . For the question of collateral estoppel to be before the court, however, it must have been pleaded as a special defense." (Citation omitted; internal quotation marks omitted.) Sydoriak v. Zoning Board of Appeals, 90 Conn.App. 649, 656-57, 879 A.2d 494 (2005). The defendants jointly filed an answer and special defenses to the complaint on July 12, 2007. The court notes that the defendants' answer and special defenses were filed in this case before the decision in the dissolution case was entered. Regardless, Practice Book § 10-50 requires that a defendant specifically allege facts in a special defense that show that the plaintiff has no cause of action for the court to consider the argument. The defendants did not raise collateral estoppel as a special defense; thus, the court will not consider this argument.
"A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). "The principles that underlie justiciability are well established. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Seymour v. Region One Board of Education, 261 Conn. 475, 481, 803 A.2d 318 (2002). "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 86.
Standing
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . [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. (Citation omitted; internal quotation marks omitted.) May v. Coffey, supra, 291 Conn. 113. "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], as distinguished from a general interest, such as is the concern of all members of the community as a whole. 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." (Internal quotation marks omitted.) Id., 112.
In the present case, the plaintiff seeks a declaratory judgment determining "[w]hether or not [he] has a right to receive proceeds under the terms of the policy." Thus, the subject matter of this action is the right to the proceeds under the homeowner's insurance policy. The dissolution decision clearly awarded all rights proceeds from the loss to the defendant, Tyler. The plaintiff has no personal or legal interest in the proceeds and therefore has no standing to bring this declaratory judgment action.
The court notes that the plaintiff has argued that he "has an interest in this declaratory judgment action for the purposes of standing because the issue of whether he is a named insured or otherwise has an interest in the subject policy may have tax consequences regardless of whether his interest is ultimately assigned to [the] defendant Nancy Tyler pursuant to the marriage dissolution order." (Plaintiff's Objection to Defendant's Motion to Dismiss, p. 6.) This argument, however, is misplaced. The plaintiff's complaint seeks a judgment declaring that the plaintiff has a right to receive proceeds under the terms of the policy, not a judgment declaring that he was insured at the time of fire.
Mootness
"Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals of Wallingford, 71 Conn.App. 43, 46, 800 A.2d 641 (2002).
Section 52-29(a) provides: "The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment." "The [declaratory judgment] procedure has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances . . . A declaratory judgment action is not, however, a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies . . . Invoking § 52-29 does not create jurisdiction where it would not otherwise exist." (Citations omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 625, 822 A.2d 196 (2003). "The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29 and Practice Book § [17-55], is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties." (Internal quotation marks omitted.) Interlude, Inc. v. Skurat, 253 Conn. 531, 536, 754 A.2d 153 (2000).
The plaintiff's complaint seeks declaratory judgment determining whether he has the right to receive proceeds under the terms of the homeowner's insurance policy, and that CMIC should be directed to make payment under the terms of policy. The court finds that the determination of the controversy in this case would not result in any practical benefit to the plaintiff. There is no question that the defendant, Tyler, possesses the sole interest in the South Washington Street property. The dissolution decision, which was affirmed by the Appellate Court, clearly awarded all rights in the property and insurance policy to the defendant, Tyler. Further, the order awarded any interest that the plaintiff may have in litigation involving the property to the defendant, Tyler. Any benefit from a declaratory judgment regarding the property would therefore flow to the defendant, Tyler, not the plaintiff Thus, this case is moot because the complainant cannot be awarded any practical relief.
CONCLUSION
For all of the above reasons, the motion to dismiss is granted. All issues raised by the plaintiff in this declaratory judgment action have been resolved in prior litigation in which the plaintiff was a participant. There is no issue for the court to decide in this case as to whether or not the plaintiff has any interest in the real property or the insurance policy proceeds.
Those issues were addressed and decided in the dissolution action.