Opinion
No. CV 09 5033006
August 25, 2010
MEMORANDUM OF DECISION REGARDING MOTION TO DISMISS #103
The captioned matter is the latest in a series of cases involving the instant parties and their boundary line dispute.
The litigation began with Vance v. Tassmer, NNH CV 06 4022908. That case seemed to end with a July 31, 2007 Settlement Agreement signed by the parties and accepted by the court, Lager, J. However, the defendants soon thereafter sought to rescind their agreement. Their attempts to rescind their agreement were rejected by the court. The defendants then began to fulfill their settlement obligations by applying for a zoning variance with the Wallingford Zoning Board, then backpedalled by withdrawing their zoning variance application prior to a hearing.
The plaintiffs moved to compel compliance with the Settlement Agreement. The court, Demayo, J., ordered compliance. The defendants appealed. The appeal was dismissed due to a lack of final judgment, Vance v. Tassmer, 115 Conn.App. 696 (2009).
A further proceeding to compel compliance with the Settlement Agreement resulted in another court order directing compliance, Demayo, J., 9-24-09.
The defendants did file an application for a zoning variance, in accordance with the Settlement Agreement, but the same was denied. The plaintiffs moved the court for an order compelling performance of the Settlement Agreement (a conveyance of several feet of real estate establishing a new boundary line between the parties residential real estate) because the defendants had not made a good faith effort to obtain the zoning variance as required by the Settlement Agreement. A further court hearing was held and the court, Demayo, J., ordered the real estate conveyance finding that the defendants' statements and conduct before the zoning board constituted a waiver the contingency of obtaining a zoning variance.
The defendants have appealed that order, Vance v. Tassmer, AC 31754. The appeal is pending.
In addition, the Tassmers filed a separate lawsuit against the Vances and their attorney claiming, inter alia, intentional interference with contractual relationships, Tassmer v. McManus et al., NNH CV 08 5018961. On April 8, 2009 the court, Robinson, J., granted the named defendant's motion for summary judgment and the case was withdrawn as the remaining defendants on April 16, 2009.
On April 15, 2009, the Tassmers instituted another lawsuit, Tassmer v. McManus et al., NNH CV 09 5028470, alleging a statutory claim, under CGS 47-33(j), for damage resulting from inappropriate recordings on the land records adversely affecting Tassmer's real estate title. The case is presently pending.
Thereafter, on December 1, 2009 the Vances instituted the instant action. This action has two counts: breach of contract (the aforementioned Settlement Agreement) alleging unspecified financial loss and damage resulting, and, vexatious litigation (based on Tassmer v. McManus et al., NNH CV 08 5018961) and damages allegedly resulting including legal fees in excess of $18,000.
The defendants moved to dismiss both counts of the instant case for lack of subject matter jurisdiction. The defendants assert that the cases are not ripe for adjudication or are non-justiciable at this time. The defendants claim the pending appeal, Vance v. Tassmer, AC 31754, makes the breach of contract claim, count one, non-justiciable because the Appellate Court will either affirm the trial court's judgment thereby compelling the Tassmers' performance of the Settlement Agreement and conveyance of a sliver of real estate from the Tassmers to the Vances or reverse the trial court and remand the case to the trial court for a trial on the merits of the original action between these parties: Vance v. Tassmer, NNH CV 06 4022908 (an action asserting an adverse possession claim). Furthermore, the defendants claim the pending trial court case of Tassmer et al. v. McManus et al., NNH CV 09 5028470 (previously described herein as an action for damages allegedly arising out of defendants' filing of a document on the land records in Tassmer's real estate's chain of title) deprives the court of subject matter jurisdiction in connection with the vexatious litigation claim.
The plaintiffs filed a December 1, 2009 two-count complaint asserting breach of contract and vexatious litigation claims against the defendants. The defendants seek dismissal of the instant case asserting, solely, that neither claim is ripe for adjudication. The plaintiffs objected to the motion to dismiss with briefs dated February 2, 2010, February 4, 2010 and March 29, 2010. The court heard oral argument from counsel.
The defendants' January 22, 2010 motion to dismiss is granted with respect to count one of the complaint and denied as to count two of the complaint. Count one is currently non-justiciable because a threshold matter upon which the count rests is committed to the Appellate Court. Count two is ripe for adjudication at this time.
A motion to dismiss based on ripeness addresses subject matter jurisdiction. "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 . . . Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005)." Weiner v Clinton, 100 Conn.App. 753, 756-7 (2007).
The motion to dismiss "attack[s] 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." (Emphasis in the original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits, it must be justiciable." Mayer v. Biafore, Florek O'Neill, 45 Conn.App. 554, 556, 696 A.2d 1282, cert. granted, 243 Conn. 912, 701 A.2d 331 (1997). "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." Nelson v. State, 236 Conn. 1, 6, 670 A.2d 1288 (1996). "In the absence of a justiciable controversy, the courts have no jurisdiction"; CT Page 16824 Kleinman v. Marshall, 192 Conn. 479, 484, 472 A.2d 772 (1984).
"The justiciability of a claim is related to its ripeness." Cumberland Farms, Inc. v. Town of Groton, 46 Conn.App. 514, 517, 699 A.2d 310, cert. granted, 243 Conn. 936, 702 A.2d 641 (1997); Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). "The ripeness doctrine is the constitutional mandate of case or controversy, U.S. Const. Art. III, [which] requires an Appellate Court to consider whether a case has matured or ripened into a controversy worthy of adjudication before it will determine the same." Neylan v. Pinsky, Superior Court, judicial district of New Haven, Docket No. 347072 (December 6, 1993, Zoarski, J.). "Its basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements." Id.
"[T]he court, in deciding a motion to dismiss, must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Savage v. Aronson, 214 Conn. 256, 264, 571 A.2d 696 (1990). "While the burden is upon the pleaders to make such averments that the material facts should appear with reasonable certainty . . . whenever the language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).
"[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." Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 569, 858 A.2d 709 (2004). 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 . . ."
The pending appellate court case, Vance v. Tassmer, AC 31754, contests the propriety of the trial court's ruling that the Settlement Agreement is enforceable in spite of the Tassmers' failure to secure a variance from the zoning board, a pre-condition of Tassmers' other obligations described in the `Settlement Agreement', and perhaps other issues not identified by the parties in their memorandum in connection with the pending matter. The Vances argue that the trial court "has held the subject contract to be (a) enforceable and (b) has ordered that the parcel of real property which was the subject of the dispute be transferred by decree to the plaintiffs as a result of bad faith in pursuing the second application which the court allowed these defendants to file." Defendants' February 2, 2010 Objection, page 2, paragraph 1. The Appellate Court may reverse the trial court and hold that the Tassmers did not breach the contract, i.e. that the contract (Settlement Agreement) is not enforceable and hence that there was no breach of contract as alleged in count one of the instant complaint. As the Vances concede that the trial court's decision implicitly found the contract (Settlement Agreement) enforceable and as the decision of the appellate court is unknowable, pending and may reverse the trial court, in whole or part — including the finding that the agreement was enforceable in spite of the failure of the contingency of a zoning variance being obtained by the Tassmers that was not granted. Therefore the issue of a breach of contract is not ripe for adjudication until the trial court's determinations are finalized. The issue of whether there was a contract, whether the contract was breached and whether the breach was excused are apparently some of the issues pending before the Appellate Court.
Paragraph 1 of the 7/31/07 Settlement Agreement found in CV 06 4022908 provides in pertinent part:
The parties stipulate as follows:
1. Judgment of Adverse Possession may enter in favor of the plaintiff (sic), contingent upon
. . .
e. The defendants will apply for and pursue approval of a variance from the ZBA to permit this new shared boundary line at their own expense, on or before 11/30/07, the parties will for trial in this matter at the convenience of the court in December 2007. The application shall be filed no later than 8/18/07.
Vances allege that the Tassmers breached "the settlement contracted reached on July 31, 2007," Count 1, paragraph 18. Necessary elements of this cause of action include: whether there was a contract, whether the contract was breached and whether the breach was excused. These are the issues before the Appellate Court.
In light of the pendency of the appeal in Vance v. Tassmer, AC 31754, wherein the existence and breach of the contract being asserted in count one of the instant action is being determined, this case is not now ripe for adjudication. In Keller v. Beckenstein, 122 Conn.App. 438 (July 13, 2010), the appellate court, in an analogous situation held that where a pending appeal would address an element of the cause of action in the trial court case, the trial court case was not ripe for adjudication under the case or controversy element of the non-justiciability test.
The suggestion that the trial court should stay the litigation in count one, pending the outcome of the appeal in Vance v. Tassmer, AC 31754, was considered and rejected in Keller v Beckenstein, supra, 445, fn 4. This trial court does not possess the power to stay the proceedings when a motion to dismiss attacking justiciability has been filed. Count Two, the claim of vexatious litigation, is now ripe for adjudication and the motion to dismiss is denied as to the same. The defendants cite a pending case, Tassmer v. McManus et al., NNH CV 09 5028470, arguing "it is essentially a continuation of the lawsuit referred to in count two of the complaint before the court," defendants' January 21, 2010 Memorandum in Support of Motion to Dismiss, page 3, paragraph 3. The defendants' argument that filing a new lawsuit `essentially a continuation' of a prior lawsuit would deprive the trial court of subject matter jurisdiction of a vexatious litigation claim based on the filing of the very prior lawsuit that was terminated in the opposing parties' favor does not make this vexatious litigation claim non-justiciable. If that were so, vexatious litigation claims would be defeated by the perpetual filing of new lawsuits, `essentially a continuation' of the previous lawsuit. The very purpose of a vexatious litigation cause of action would be undermined.
In fact, the cause of vexatious litigation requires: "A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor." (Emphasis added.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).
Here the plaintiffs claim that Tassmers' filing of the case of Tassmer v. McManus, et al, CV 08 5018961, with malice, together with the termination of that suit in their favor constitutes the operative elements of the vexatious litigation cause of action, Count 2, paragraphs 20, 27, 28, 29 and 30 causing Vance to incur attorneys fees in an amount greater than $18,000.
The Tassmers' filing of yet another lawsuit against the Vances does not render the vexatious litigation claim found in Count 2 to be non-justiciable. Examining the elements of justiciability articulated by our Supreme Court in Nelson v. State, supra, p. 6, this court finds the defendant has failed to establish that the criteria for lack of ripeness have been established.
The defendants' motion to dismiss is therefore granted as to count one. This count relies upon a threshold determination which has yet to be made by the Appellate Court and is therefore non-justiciable as not yet ripe for review. The court is thus deprived of subject matter jurisdiction as to count one.
The motion to dismiss is denied, however, as to count two. This count is justiciable, and the court therefore has subject matter jurisdiction over it.