Opinion
CV166028104
09-08-2017
Timothy J. Stokes et al. v. Margaret A. Serapilia and Margaret A. Serapilia, Trustee of the Margaret A. Serapilia Revocable Trust Dated August 7, 2003
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE: OBJECTION TO MOTION TO IMPLEAD
Timothy D. Bates, J.
FACTS
On September 19, 2016, the plaintiffs, Timothy J. Stokes and Jamie Lynn Stokes, brought this action against the defendant, Margaret A. Serapilia, individually and in her capacity as trustee of the Margaret A. Serapilia Revocable Trust. This action involves the parties' co-ownership of property and improvements located at 84-86 Swan Avenue, Old Lyme, Connecticut. In their complaint, the plaintiffs seek partition of the property (Count 1), and accounting (Count 2), damages resulting from breach of fiduciary duty (Count 3), negligent misrepresentation (Count 4), intentional misrepresentation (Count 5), fraudulent nondisclosure (Count 6), breach of contract (Count 7), promissory estoppel (Count 8), tortious interference with business expectations (Count 9), CUTPA (Count 10) as well as a dissolution and winding up (Count 11).
The defendant has now filed a motion to implead as third-party defendants, Maureen H. Swarts and Attorney Valerie Votto, claiming that they are or may be liable for all or part of the plaintiffs' claims and are additional parties necessary for a full and fair determination of the issues presented (see motion to implead #119). In their memorandum of law in support of the motion to implead (#120), the defendant states Swarts and Votto are necessary properties for full adjudication of this matter, Swarts in her capacity as the licensed realtor and Votto in her capacity as the attorney for the seller. The defendant specifically alleges that both Swarts and Votto were aware of an IRS lien on the premises prior to the plaintiffs purchasing the interest in it, and both failed to disclose this information to the plaintiffs. In seeking this motion to implead, the defendant acknowledges that if she loses the pending suit, they will have three years after that decision to seek indemnification from Swarts and Votto, but they claim that addressing this claim now will avoid a " multiplying of lawsuits."
The plaintiffs, Timothy J. Stokes and Jamie Lynn Stokes, object to the entry of Swarts and Votto as parties in this case, stating that the defendants have no contractual relationship with Swarts or Votto. As to Swarts, the plaintiffs state that she never represented any fact to them as to the presence of any lien on their property. As to Votto, the plaintiff states the defendant never had a legal relationship with Votto, citing Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988), which held that " [as] a general rule attorneys are not liable to persons other than the clients for the negligent rendering of service."
ANALYSIS
While the court is sympathetic to the plaintiffs' motion, it appears that their motion is premature. The impleader statute, General Statutes § 52-102a(a), denotes only two considerations for the court in determining whether a motion to implead should be granted:
(1) whether the granting of the motion would unduly delay the trial, and (2) whether the granting of the motion would " work an injustice" upon either the plaintiff or the party sought to be impleaded. In the present case, trial is scheduled to start on August 21, 2018. Granting the motion to implead the two third-party defendants seems unlikely to unduly delay the start of trial at this point in time. There is also no indication that granting the motion would work an injustice upon either the plaintiffs or the prospective third-party defendants. Based on those two considerations, the court grants the motion to implead.
However, the sufficiency of the third-party complaint may properly be challenged, either by the plaintiffs or the third-party defendants, through a motion to strike subsequent to the granting of the motion to implead. See Commissioner of Environmental Protection v. Lake Phipps Land Owners Corp., 3 Conn.App. 100, 102 n.2, 485 A.2d 580 (1985) (" An attack upon the sufficiency of an impleader complaint should be made by a motion to strike. That motion is used to test the legal sufficiency of a complaint, counterclaim or cross claim, or of any count thereof, to state a claim upon which relief can be granted"); See also Campagna v. Aronson, Superior Court, judicial district of Danbury, Docket No. CV-94-312972-S (February 23, 1995, Stodolink, J.) (" [b]oth the plaintiffs and the third-party defendant will have an opportunity, subsequent to the granting of the motion to implead, to contest the legal sufficiency of the objectionable portions of the third-party complaint"); Carothers v. South Farms of Middletown, Inc., Superior Court, judicial district of Hartford, Docket No. CV-90-0382110-S (November 12, 1991, Hennessey, J.) (" [t]he issues raised by the plaintiff in her Reply Memorandum In Opposition to Defendants' Motion to Implead go to the legal sufficiency of the third-party complaint, and should be raised in a motion to strike").
Here, if the court were to grant the motion to implead, the plaintiffs could subsequently file a motion to strike reasserting the arguments made in their objection to the motion to implead, or the third-party defendants could file a motion to strike asserting their own arguments on similar grounds. Based on a review of the current filings, the defendants' proposed third-party complaint does appear to be legally insufficient and therefore would be unlikely to withstand a motion to strike. In the proposed third-party complaint, the plaintiffs only allege that the prospective third-party defendants, Swarts and Votto, are liable for all or part of the plaintiffs' claims; the defendant do not allege that Swarts and Votto are liable to her for those claims, as required by § 52-102a(a). See Commissioner of Environmental Protection v. Lake Phipps Land Owners Corp., supra, 3 Conn.App. 102 (" An impleading party has the burden of alleging facts sufficient to bring an action within the requirements of the statute . . . As a fundamental and threshold requirement, a third-party plaintiff must allege that the third-party defendant is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against him." [Citation omitted; emphasis added.]) See also Lisinski v. New London, Superior Court, judicial district of New London, Docket No. CV-03-0564377-S (October 4, 2005, Jones, J.) , (" both our impleader statute, [General Statutes] § 52-102a[a], and our Practice Book Rule, . . . § 117 [now § 10-11], limit the claims under a third-party complaint to those against persons who are or may be liable to the third-party plaintiff for all or part of the plaintiff's claims against the third-party plaintiff" [footnotes omitted; internal quotation marks omitted]); Gavigan v. Country Manor Health Care Center, Superior Court, judicial district of Waterbury, Docket No. CV-99-0154618-S (March 19, 2001, Rogers, J.) (granting motion to strike third-party complaint where third-party plaintiff " failed to allege that the third-party defendant is liable to it in any way. In order to implead a nonparty for common-law indemnification action, the third-party plaintiff must allege that the third-party defendant is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim, in addition to alleging the four elements of common-law indemnification"). In fact, the defendant explicitly states in her reply brief that she does not " claim that [prospective third-party defendant] Votto is directly liable." Thus, the defendant appears to have failed to meet the threshold requirement to bring an action within § 52-102a(a). However, this apparent legal insufficiency is properly addressed through a motion to strike subsequent to the granting of the motion to implead.
CONCLUSION
The plaintiffs' objection to the motion to implead is, therefore, overruled.