Opinion
FSTCV186035450S
08-14-2018
Paul VENTURA v. B.I.B. 22, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO QUASH (# 105.00)
Although the focus of this decision is on # 105.00, the court also is addressing the motion for default for failure to plead (# 104.00) and especially the defendant’s objection (# 106.00) which raises a jurisdictional challenge and therefore requires immediate attention.
POVODATOR, JTR
A sometimes-unintended consequence of demanding that an adversary dot his i’s and cross his t’s with respect to procedures, is that such an approach often invites (or results in) a similarly-scrupulous review of the conduct of the moving party. A situation that might have been resolved by the parties, without formal intervention of the court, was allowed to escalate to the point of needing a decision by the court, probably to no one’s ultimate benefit.
The plaintiff sought to take the deposition of a non-party witness, only serving the defendant and the witness with a notice of deposition. The defendant has moved to quash, also seeking a protective order and sanctions against the plaintiff, based on the claimed irregularity of the procedure by which the plaintiff attempted to take the deposition of an individual who is not a party but who (according to the plaintiff’s objection) plays a role in the operation of the defendant entity. The defendant contends that the plaintiff should have used the procedure set forth in Practice Book § 13-27(h), whereby the adverse party issues a notice of deposition to the corporate party, designating areas of inquiry, and the corporate entity is then obligated to designate one or more knowledgeable individuals to appear at the deposition on behalf of the entity. (If the plaintiff wished to depose the witness specifically and without regard to designation by the corporate principal, he could have issued both a notice and a subpoena, but there is no suggestion that a subpoena ever was issued.) The plaintiff has filed an objection to this motion and the defendant has filed a reply.
The individual is identified in the return of service as the defendant’s agent for service, and in the objection, the witness is described as playing a role in the defendant’s operations.
The necessary starting point is that the defendant is correct, technically, with respect to the manner in which a deposition of an officer or other representative of a corporate entity can be compelled to testify on behalf of the entity- with emphasis on "compelled" (in the absence of a subpoena). Parties often will use a less-formal approach, but that requires assent or at least acquiescence by all concerned, and that apparently did not exist here. (Putting aside the apparent relationship between the prospective deponent and the defendant, the court also notes that non-party witnesses sometimes make themselves available for a deposition without the need for a subpoena, sometimes as a quid pro quo for greater accommodation in scheduling or simply to avoid perceived-to-be-unnecessary formalities.)
The court notes that the plaintiff has not sought to enforce anything relating to the attempt to take the deposition that is the focus of this motion and has not sought any sanctions for the failure of the deposition to go forward. (In his objection to the motion, the plaintiff only argues that the relief sought by the defendant in this motion is inappropriate; there is no effort to seek affirmative relief, such as compelling the deposition to proceed at a later date.) Related, to the extent that Practice Book § 13-28 authorizes the filing of a motion to quash, subsection (e) directs that any such motion must be filed "promptly and, in any event, at or before the time for compliance" (and presumes that the motion to quash is directed to a subpoena- which is not present here). Is a filing at 12:23 PM on July 31, with respect to a notice of deposition dated/issued in June and a scheduled time for the deposition of 2:00 PM on July 31, subject to characterization as having been filed "promptly"?
The court recognizes that the defendant has submitted an email chain indicating that there had been discussions about the deposition and the procedures being followed, reflecting that counsel for the plaintiff had continued to insist on his right to take the deposition of the particular witness and insisting that a motion be filed by the defendant if the deposition were not to go forward. The court further notes that in the email chain, the issue of proper procedure was first mentioned in mid-June, but there is no further "record" until July 30, 2018, the day before the scheduled deposition. Thus, while there had been some early identification of the procedural issue which the court recognizes as an effort to obviate the need for such a motion, a factor that the court ordinarily encourages and appreciates, it is at best uncertain whether the record does establish a prompt application to the court, given this 6-week interval. Less technically but of practical (and perhaps greater) concern, why did the plaintiff insist on forcing the parties to proceed down this path, including insistence on a formal motion, rather than simply serving a new and procedurally-unassailable notice of deposition?
The email messages in mid-June actually predated the notice of deposition attached to this motion; reference in the email chain to "rescheduling" and other indications that scheduling already was an issue in mid-June suggest that there had been earlier efforts to schedule the witness’ deposition.
There is also the subsidiary question of why the defendant felt compelled to seek a decision on this motion. Did the plaintiff also insist that, once the motion was filed, it be adjudicated? Or. did the defendant believe that, having been forced to file the motion, it might as well seek a decision (with the possibility of obtaining sanctions/costs)? While the court is not privy to the communications between the parties (other than the email chain submitted), the timing of the filing of the objection, and the absence of any reference in the objection to insistence by the plaintiff that he had followed an appropriate procedural path, suggests that the decision to ask the court to decide this motion was unilaterally made by the defendant, forcing an escalation in the form of an objection, in turn eliciting a reply.
Given the absence of any apparent claim (now) by the plaintiff that the notice of deposition issued for the July 31, 2018 deposition was proper, it is not clear whether any action actually is required by the court at this time, an uncertainty compounded by the question of whether a notice of deposition directed to a non-party is sufficiently facially-unenforceable (in the absence of a subpoena) that there is no element of compulsion requiring the court to quash the notice. Having gone this far in the analysis, the court grants the motion, to the extent that it seeks to quash the notice of deposition.
In addition to seeking to quash the notice, the defendant separately seeks a protective order. The court believes that there is no basis for such relief at this time, especially based on the record before the court. The fact that the plaintiff may have used a procedurally-inappropriate method to attempt to take a deposition of a witness does not warrant an order precluding the plaintiff from ever taking that deposition, even if a more appropriate procedure were to be followed. To the extent that the defendant may be implying a jurisdictional basis for not allowing the deposition to go forward under any circumstances, the court finds (as discussed below) the jurisdictional argument to be groundless, based on the current record. Further, if there were an outstanding jurisdictional issue that needed to be resolved, the court would not be inclined to enter a blanket protective order, because a party confronting a motion to dismiss is entitled to discovery on the jurisdictional issue (Standard Tallow Corp. v. Jowdy, 190 Conn. 48 (1983) ), and there is no basis for the court to conclude that the proposed witness would have no possible relevant information relating to any jurisdictional issue that the defendant might choose to pursue.
Somewhat validating the observation at the outset that insistence on strict adherence to the rules often invites a reciprocal approach to the moving party’s submissions, in the objection to the motion under review, the plaintiff claims the absence of any effort to establish "good cause" (as required by the applicable rule) for a blanket prohibition against the taking of the prospective deponent’s deposition.
The defendant also seeks sanctions. While the court- as may be apparent- has serious issues with respect to the plaintiff’s insistence that a motion be filed, as discussed in this decision, the conduct was not sufficiently egregious to warrant sanctions, especially given the existence of procedural irregularities on both sides, as identified throughout this decision, resulting in escalation of transactional costs for both sides.
As noted above, in its motion, the defendant alludes to its perception that the court lacks subject matter jurisdiction. The reference to a jurisdictional challenge in the motion currently on the calendar invited a detailed review of all prior pleadings, to see whether the defendant ever filed a motion to dismiss, raising subject matter jurisdiction, and to assist the court in determining the scope of the jurisdictional issue that the defendant claims to exist. While subject matter jurisdictional defects cannot be waived ( Stefanoni v. Department of Economic and Community Development, 142 Conn.App. 300, 306 (2013) ), a party is expected to file an appropriate motion when such an issue becomes apparent (Practice Book § 10-30) so that the issue can be presented to the court and resolved in an orderly manner. The court could find no prior motion or equivalent. Rather than filing a motion to dismiss, the defendant incorporated the substance of a motion to dismiss- irregularly if not improperly- into a subsequently-filed objection to the plaintiff’s motion for default for failure to plead.
If the defendant had filed a more direct/obvious motion to dismiss, that motion automatically would have been a basis on which a motion for default for failure to plead would/could not have been granted. By incorporating the issue into an objection to the motion for default, the jurisdictional challenge might not have come to the attention of the court but for the review necessitated in addressing the pending motion to quash, unless one of the parties had asked the court to "take papers" on the objection when it appeared on a calendar- but even then, an objection to a motion for default presumptively is a non-arguable matter whereas a motion to dismiss- when properly filed- is presumptively arguable.
The objection to the motion for default is scheduled to appear on the short calendar for August 20, 2018 as a non-arguable matter, some 17 days after the objection was filed. Practice Book § 10-31 provides that absent an order of the court to the contrary, a motion to dismiss will not appear on a calendar until at least 45 days after filing, and the rule also provides the opposing party with 30 days to file an objection.
The improper manner of presentation is compounded by an apparent intentional aspect to the delay in presenting the issue, and further implicating internal (court) issues presented by the irregular approach taken. A motion for default for failure to plead routinely (and by rule- Practice Book § 17-32) is acted upon by a clerk, and in the absence of a recognized responsive pleading (see, e.g., Practice Book § 10-6), a default would be- should be- entered. Returning to a point already made, why did the defendant file an objection to the motion for default, rather than a motion to dismiss which would have presented the claimed jurisdictional issue in the most direct manner possible, while at the same time satisfying the obligation to file a pleading if a default is to be avoided?
In a June 13, 2018 email message from the defendant (part of the email chain attached to the defendant’s motion), there is a reference to consideration being given to filing a motion to dismiss- the objection to the motion for default, incorporating a claim of lack of jurisdiction, was not filed until approximately 6 weeks later.
Presumably, if the existence of an objection to the default is noted by the clerk, the clerk will not rule on the merits of the objection, and instead defer to the court.
Treating the objection to the motion for default as an affirmative motion to dismiss, challenging the existence of subject matter jurisdiction- which generally must be considered and resolved by the court, when raised, regardless of the manner in which it has been raised (Honan v. Dimyan, 85 Conn.App. 66, 69 (2004); Sousa v. Sousa, 157 Conn.App. 587, 599-600 (2015) )- the "motion" is denied. The court finds that, based on the record before the court, subject matter jurisdiction exists.
The defendant appears to have ignored the requirements applicable to presenting a jurisdictional challenge, and not only by failing to file a formal motion. In the body of the objection to the motion for default, reference is made to an "indisputable fact" (and other claimed facts are suggested by the defendant), but there are no such facts properly before the court at this time. To the extent that cases such as Conboy v. State, 292 Conn. 642, 650-54 (2009) (and see, more recently, Cuozzo v. Orange, 315 Conn. 606, 615-17 (2015) ) identify a tiered approach to motions to dismiss, the record before the court for purposes of determining the existence of jurisdiction is comprised only of such facts as are recited or implied in the complaint. Absent an affidavit or other evidentiary submission by the defendant, the court is required to review the complaint in a manner most favorable to the non-moving party, and is required to construe the record in a manner favoring the existence of jurisdiction (see, e.g., Ed Lally and Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728 (2013) ). According to the complaint, under the agreement between the parties, the plaintiff would be entitled to a commission if either the plaintiff or defendant found a ready, willing and able buyer, prior to the expiration of the agreement between the parties. The complaint further states that the plaintiff is entitled to a commission because within the life of the contract, the defendant did find a ready, willing and able buyer (¶ 5 of complaint).
The fact that the sale may have not been consummated ("closed") as alleged by the defendant (without support in the record) does not appear to be a necessary condition under the contract (as recited in the complaint) and does not have any facially-apparent jurisdictional implications. Again, as recited by the plaintiff, the only requirement was that a ready, willing and able buyer be found, and the claim is that such a buyer was found. If there is a dispute as to whether a condition precedent (whether an actual closing or some other condition) has been satisfied, that is not a jurisdictional issue, but rather goes to the merits of the dispute between the parties. Compare, Gurliacci v. Mayer, 218 Conn. 531, 541-46, 590 A.2d 914 (1991) (discussing why satisfaction of statutory exception to immunity was not a jurisdictional issue).
While the court has not done a detailed survey or any formal research, the court’s sense is that most real estate commission disputes arise in situations where there had been no closing, with the issue being entitlement to a commission notwithstanding the absence of a closing. The dispute often centers on whether a prospective buyer was a ready, willing and able buyer, or whether a contingency became operative (e.g., timeliness of notice of an inability to obtain a mortgage loan or whether a good faith effort to obtain a mortgage loan had been made, in the context of a mortgage contingency provision)- none of which would be an issue if a closing had occurred.
The defendant effectively has attempted to reformulate the claim being made by the plaintiff:
Plaintiff’s Complaint does not allege that he is entitled to a commission notwithstanding that the Property has not sold. Plaintiff’s Complaint does not allege an alternative theory for his entitlement to a commission. Rather, Plaintiff’s single-count Complaint is based entirely on a sale that never took place.
As recited in the paragraph preceding this excerpt from the defendant’s motion, the plaintiff asserts a right to a commission that is not dependent on a closing or actual sale, but only dependent on either the plaintiff or defendant obtaining a ready, willing and able buyer. An actual sale is not part of the plaintiff’s theory, and the defendant cannot force the plaintiff to negate a condition that does not exist (at least as alleged in the complaint ). The defendant has not identified a jurisdictional flaw in the plaintiff’s theory as articulated in the complaint actually filed.
Paragraph 6 of the complaint recites an expected closing (with an expected date for the closing), but there is nothing in the complaint suggesting that a closing/consummation of the sale is a condition to the right to a commission. A sale might generate the funds necessary to pay the commission, but the defendant has not pointed to anything in the record suggesting that an actual sale is an element of a right to a commission or otherwise is an element of a breach of contract claim arising under the contract between the parties.
Even if the defendant’s interpretation of the controlling provisions of the agreement between the parties were correct, i.e., requiring a closing, that is not a jurisdictional issue (in any presumptive sense). If there is no possible dispute as to the correct interpretation of the contract, and if there is no dispute as to the failure of the plaintiff to satisfy a requirement in the contract, that would appear to be a summary judgment issue, assuming that a proper evidentiary record could be submitted. The court has jurisdiction to determine disputes relating to contracts in general, and real estate commission disputes in particular, and the fact that a party seeking a commission may not be able to prove a contractual right to a commission cannot be characterized as implicating jurisdiction; see, Gurliacci, supra . That is not a matter of mootness- the lack of ability of the court to afford (practical) relief- but rather an issue relating to proof of entitlement to relief.
In Conboy, 292 Conn. 653 n.16, the court recognized that in some instances, the jurisdictional issue might be so intertwined with the merits that a determination of the jurisdictional issue might have to await a full trial on the merits. Thus, if the defendant here were in fact raising a jurisdictional issue, by arguing that the plaintiff’s lack of any right to recovery implicates jurisdiction, that would appear to be a situation coming within the scope of the recognized exception to the usual rule that jurisdictional issues, once raised, must be resolved before the case can proceed (Honan, supra ; Sousa, supra ).
Still further, even if the contract did require a closing, and a closing did not occur, there could well be a justification or legally-cognizable excuse for non-performance of such a requirement. Such contentions and counter-contentions would implicate the merits of the dispute, not jurisdiction of the court.
Thus, the court is faced with a record of a claimed jurisdictional defect predicated on an issue that does not appear to be jurisdictional in nature, compounded by the absence of any record (evidentiary or in the operative complaint) providing any support for the contentions essential to the position being taken by the defendant (assuming it were a jurisdictional issue). Absent any evidentiary record to the contrary, the court may rely on the allegations of the complaint and deny (if appropriate) a challenge to the court’s jurisdiction without a formal hearing. Wells Fargo Bank, N.A. v. Henderson, 175 Conn.App. 474, 490, 167 A.3d 1065, 1075 (2017).
Accordingly, the Court rejects the defendant’s challenge to the existence of subject matter jurisdiction, based on the record currently before the court. As that jurisdictional claim was the basis for the objection to the motion for default for failure to plead, that objection is overruled.
The court notes a further procedural irregularity. As identified earlier, once jurisdiction is challenged, the case is not supposed to proceed with any non-jurisdictional issue until the jurisdictional issue is resolved- but prior to seeking a decision on the motion to dismiss imbedded in the objection to the motion for default, the defendant asked the court to decide the motion to quash (and for protective order and for sanctions)- by marking this motion "take papers"- while the jurisdictional issue remained outstanding (and not submitted for adjudication). It is only because the court is addressing all outstanding issues through this decision that the court can address the motion to quash at this time.
Technically, in the absence of a formal pleading in compliance with Chapter 10 of the Practice Book, and especially provisions such as Practice Book § 10-6 previously identified, the court probably could enter a default in accordance with the plaintiff’s motion for default, no proper pleading having been filed after expiration of the time in which such a pleading was required to be filed- see, Practice Book § 10-8 and Practice Book § 10-18. The objection to the motion for default presumably is the reason that the clerk did not enter a default upon expiration of the requisite period of time; the objection now having been overruled, there is no basis not to grant the motion in the absence of a proper pleading of record. However, notwithstanding the absence of a filing denominated as a motion to dismiss (or other permissible responsive pleading), the court believes that the defendant should be afforded an opportunity to file a responsive pleading without the constraints that would result from the entry of an immediate default. Accordingly, the court is ordering that the defendant file a responsive pleading, but such pleading is to be filed within two weeks of issuance of this decision- there has been too much of a free-form approach to procedures, and the court does not want to allow or encourage any further delay. For example, given the defendant’s articulated belief that a sale/closing was required for the plaintiff to be entitled to a commission, the court anticipates either a motion to strike or a motion for summary judgment, and undue delay in having such motion(s) filed and decided can only impact- negatively- the ability to try the case in a timely manner.
Ordinarily, the court does not involve itself with this level of monitoring and detailed analysis of the pleadings and filings of the parties (and especially the focus on adherence to technical aspects of Practice Book rules), but given the largely inexplicable insistence by the plaintiff that a motion be filed- inexplicable given the absence of any attempt to argue (in the objection to the motion under consideration) that the procedure followed by the plaintiff had been proper- and the uncertain rationale for the court being asked to adjudicate the motion, all in the context of a procedurally irregular presentation of a claimed jurisdictional issue (but without any supplementation of the record to support the claims being made), the court felt compelled to take the necessary steps to get this case on track.