Opinion
WWMCV186013837S
01-25-2019
WIRELESS SOLUTIONS XVIII, LLC v. John PIELA et al.
UNPUBLISHED OPINION
OPINION
Cole-Chu, Judge Trial Referee
The plaintiff, Wireless Solutions XVIII, LLC, brought this action by way of a three-count complaint dated April 3, 2018. The return date on the summons is April 24, 2018. The marshal’s return states that defendant John Piela (defendant) was served with process by service on the Connecticut Secretary of the State’s office on April 30, 2018, and by mailing to the defendant copies of the summons and complaint on May 1, 2018. The defendant appeared by counsel on May 11, 2018. On June 11, 2018, the defendant moved to dismiss this action for lack of subject matter jurisdiction and for insufficiency of service of process. On July 11, 2018, the plaintiff filed an objection to the motion to which the defendant replied on July 13, 2018, with two affidavits. The motion was argued that day, July 13, 2018, and, during the argument, the movant explicitly, and the plaintiff implicitly, waived an evidentiary hearing. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983) (when determination of a court’s jurisdiction depends on issues of fact, due process requires a trial-like hearing).
Verizon Wireless Solutions, LLC, and Stephen Schadler are also defendants in this action, but neither is a party to the present motion.
The motion, though filed on the thirty-first day after the movant’s attorney’s appearance, is not untimely under Practice Book § 10-30(b) because the thirtieth day fell on a Sunday. See Practice Book § 7-17.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011). "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." (Citation omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). On the other hand, neither conclusions of law nor opinions are taken as true. Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009) (in motion to dismiss context, trial court considers facts alleged in complaint, facts implied by what is expressly alleged, and undisputed facts established by affidavits, if any).
It is the burden of the party who seeks the court to exercise jurisdiction in his favor to clearly allege facts demonstrating that the court has jurisdiction. Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413-14, 35 A.3d 188 (2012). However, in determining jurisdiction, the court may rely on the complaint and undisputed facts from the record; Conboy v. State, supra, 292 Conn. 650-51; and, in particular, every appropriate presumption favors finding subject matter jurisdiction. Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012).
FACTS
The plaintiff alleges that it and the defendant/movant entered into a lease agreement, dated December 2, 2009, by which the defendant, as landlord, agreed to lease real property located at 7 Colburn Road, Canterbury, Connecticut, to the plaintiff, as tenant, to use or replace an existing cell phone tower on the property. The initial term of the lease was 10 years, with six successive five-year terms at the option of the plaintiff. The plaintiff had the right to use the tower on the land for future customers or replace the existing tower.
The defendant breached the lease when he entered into another agreement with Verizon Wireless, Solutions, LLC (Verizon), giving it the right to access the same area currently leased to the plaintiff. Verizon is currently undertaking steps to develop the area and install its antennas on the existing tower.
The plaintiff attached a copy of the lease agreement, drawings and plans of the property, and communications from the plaintiff to Verizon to the complaint.
"A complaint includes all exhibits attached thereto." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
DISCUSSION
The defendant moves to dismiss on two grounds: insufficient of service of process and lack of subject matter jurisdiction. The court will discuss these claims in the reverse order because, if the court lacks subject matter jurisdiction, flawless service would not matter.
I
The defendant moves, pursuant to Practice Book § 10-30(a)(1), to dismiss the complaint for lack of subject matter jurisdiction on three grounds: (1) the plaintiff lacks standing; (2) the plaintiff cannot state a cause of action; and (3) there are no justiciable issues. Whenever subject matter jurisdiction is challenged, the plaintiff bears the burden of proving its existence. Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). However, again, every appropriate presumption favoring the existence of subject matter jurisdiction applies. See Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014).
A.
The defendant’s first ground for the motion to dismiss for lack of subject matter jurisdiction is that the plaintiff lacks standing to enforce the lease. "[B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. of Education, supra, 303 Conn. 413. "If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnote omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011). Specifically, the defendant argues that because the plaintiff is not the named party in the lease, it is not entitled to enforce it. The plaintiff responds, arguing the lease allowed an assignment of rights from the previous lessee to the plaintiff, enabling the plaintiff to enforce the lease.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes ... standing by allegations of injury. Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 326 Conn. 438, 447-48, 165 A.3d 1137 (2017). "[O]ne who was neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract ..." Coburn v. Lenox Homes, Inc., 173 Conn. 567, 570, 378 A.2d 599 (1977).
A lease is a contract. Cohn v. Fennelly, 138 Conn. 474, 476, 86 A.2d 183 (1952). As such, "a lease is subject to the same rules of construction as other contracts." Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 35, 900 A.2d 513 (2006). "In construing a written lease ... three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible." (Internal quotation marks omitted.) Id., 35-36.
Here, the plaintiff has standing. The lease’s preamble provides in relevant part: "[T]he Lessee may transfer to a new CT LLC with an office and place of business in Uncasville, Connecticut (the Lessee)." It is true that the plaintiff’s name does not appear in the lease. However, the lease explicitly gave the named lessee, Wireless Solutions, LLC, the right to assign to a new company without the defendant’s consent. Section 16 of the lease provides in relevant part: "This Agreement, may, from time to time, at the discretion of the LESSEE, be assigned or transferred by the LESSEE, without the consent of the LESSOR. LESSEE shall, however, within five (5) days after such transfer or assignment, notify the LESSOR of the same in writing." Section 25 of the lease reinforces this provision by stating the "Agreement shall extend to and bind personal representatives, successors and assigns of LESSOR and LESSEE ..." Thus, the parties clearly contemplated that the lease could be assigned. The only restriction in section 16 is that Wireless Solutions, LLC notify the defendant, as lessor, in writing, within five days, of such assignment. Here, Wireless Solutions, LLC, apparently assigned its rights to the plaintiff on December 2, 2009, by a Notice of Lease, later filed in the Canterbury Land Records, naming the lessee as "Wireless Solutions and or Wireless Solutions XVIII, LLC." The defendant’s signature on that notice at least indicates that he was notified of the assignment to the plaintiff within five days of the assignment. The defendant does not dispute these points.
Although this provision could be read to restrict the assignment to a Connecticut LLC with an office and place of business in Uncasville, this preamble, like recitals, is merely explanatory of the circumstances surrounding the execution of the contract and is not a binding obligation unless referred to in the operative provisions of the contract. See Tomey Realty Co. v. Bozzuto’s, Inc., 168 Conn.App. 637, 644, 147 A.3d 166 (2016).
Although page 13 of the lease, which encompasses a portion of section 24 and sections 25 through 29, was not included in the lease attached to the original complaint, the court treats it as part of the lease because it is dated the same date as the rest of the lease and has the same format of other sections in the lease. Further, there is no evidence or argument that this page was a false or inaccurate addition made after the lease was signed.
Nevertheless, the defendant argues that section 14 of the lease requires the assignee to be a legally formed limited liability company (LLC) in Connecticut and, because the plaintiff did not have a legal existence until it was organized on March 28, 2018, the assignment to the plaintiff is void. That argument is unpersuasive. Section 14 of the lease provides in relevant part: "LESSEE agrees, represents and warrants to LESSOR that a) it is a legally formed and validly existing Connecticut limited liability company in good standing with the State of Connecticut ..." Section 14 constitutes neither a representation nor a requirement that the future assignee was a legally formed LLC at the time the lease was entered into. "[U]nless an antiassignment clause expressly limits the power, as opposed to the right, to assign the contract or invalidates the assignment, the assignment remains valid and enforceable ..." (Emphasis omitted.) David Caron Chrysler Motors, LLC v. Goodhall’s, Inc., 304 Conn. 738, 747-48, 43 A.3d 164 (2012). Section 14 merely states that Wireless Solutions, LLC, at the time it entered into the lease, represented that it was a legally formed Connecticut LLC, which the defendant does not dispute. To the extent that section 14 could operate as an antiassignment clause, as the defendant argues, there must be express contractual language that limits the power of Wireless Solutions, LLC, to assign its rights to the plaintiff. See id., 748. Because no such express language exists in that section, it cannot operate as an antiassignment clause and the assignment is valid. Section 14 does not prevent Wireless Solutions, LLC, from assigning its rights under the lease to the plaintiff, even though the plaintiff did not exist at the time of the assignment. Accordingly, the assignment was valid and the plaintiff has standing to enforce the lease.
The Secretary of the State’s records show that Wireless Solutions, LLC was created in 1994 and remained active as late as 2016.
B.
The defendant’s second ground for the motion to dismiss for lack of subject matter jurisdiction is that the plaintiff cannot state a cause of action. A motion to dismiss "asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court." (Internal quotation marks omitted.) Mulcahy v. Massa, 89 Conn.App. 115, 128, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005). Specifically, the defendant argues the lease is unenforceable because it does not contain a specified lease area, it contemplates the construction of a new cell phone tower, and it lacks consideration.
1.
The defendant argues the lease is unenforceable because it does not contain a specified leased area. This argument is unavailing. The first paragraph of the recital to the lease provides: "WHEREAS, LESSOR is the owner of certain real property located in the Town of Canterbury, County of New London and State of Connecticut, located at # 7 Colburn Road, so-called, being more particularly shown and described on a plan entitled, Leased Area and Utility Easement Plan Prepared for Wireless Solutions, # 7 Colburn Road Canterbury Connecticut Identification-No., L.S. Licensed Land Survey Lic. No. which map or plan is or will be filed with the Town Clerk of Canterbury, the ‘Leased Area ’ containing 15, 625 square feet, (125" x 125’) compound area together with a twenty-five-foot access and utility easement area off 7 Colburn Road to the site and being described on said plan above. This plan shall be prepared before or after the executing of this Agreement." (Emphasis added.) Further, section 1 of the lease provides in relevant part: "Lessor also grants to the Lessee a non-exclusive Easement Area and right of way 25’ in width, as located and shown on the afore described plan, for unrestricted ingress to and egress from said Leased Area ... together with the right of the Lessee to install and maintain both above and below ground, utility wires, cables ... within the area shown on said Plan and generally referred to as the Easement Area." Section 2 of the lease provides in relevant part: "Lessee agrees to pay Rob Hellstrom Land Surveying in the amount of $ 1, 800.00 ... for said map for 7 Colburn Road Canterbury CT an A-2 survey and subdivide the map into two parcels." (Emphasis added.)
Constructing these provisions together, it is clear that the parties agreed it was not necessary to have a plan or map before entering into the lease. See Bayer v. Showmotion, Inc., 292 Conn. 381, 411, 973 A.2d 1229 (2009) ("[p]arties, however, may form a binding contract even if some nonessential terms of their agreement are indefinite or left to further negotiations"). According to the affidavit of Ken Thomas, the plaintiff’s sole member, Thomas retained a surveyor and had a map created after the parties executed the lease. The plaintiff attached to its complaint two maps which detail the boundaries of the "Leased Area" and easement area. The lease is not unenforceable for lack of agreement as to the property leased.
2.
The defendant next argues the lease is unenforceable because it contemplates the construction of a new cell phone tower rather than use of the existing one of the property. This argument is unavailing because it does not state a theory of unenforceability: why a lease involving a cell tower or any other improvement-to-be-constructed is, for that reason, unenforceable eludes this court.
The third recital to the lease provides in relevant part: "WHEREAS, the Lessee has the right to use for co-location of antennas for future customers or to replace the existing 130-foot tower on said Leased Area with a new self-supporting communications tower up to 195 feet’ in height ..." (Emphasis added.) Section 1 of the lease provides in relevant part: "The Lessee solely shall be responsible for all costs and expenses associated with the development of a new tower upgrade ..." Section 2 of the lease further provides in relevant part: "Lessee shall have two years to start construction on a new tower site with no fees payable to Lessor." Section 6 of the lease provides in relevant part: "LESSEE may use the Leased Area for the purpose of constructing, maintaining and operating a communication facility and all use incidental thereto ..." (Emphasis added.) Lastly, section 12 of the lease provides, in relevant part: "Title to all improvements constructed or installed by LESSEE on the Leased Area shall remain the property of the LESSEE ..."
Construing these provisions together, it is clear that the lease gives the plaintiff the option, rather than the obligation, to build a new cell phone tower. "An option is a continuing offer to sell, irrevocable until the expiration of the time period fixed by agreement of the parties, which creates in the option holder the power to form a binding contract by accepting the offer." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. 409. "The determination of the terms and conditions of [the] option contract must be resolved, in the absence of supplementary evidence of the intent of the parties, by reference to the terms of the contract itself." (Internal quotation marks omitted.) Id.
No provision of the lease requires the lessee-either the named lessee or the plaintiff as assignee-to build the tower. At most, section 2 merely allows the plaintiff to build the tower fee-free within two years of the execution of the lease. If the plaintiff decided to start construction after two years, it would have to pay fees to the defendant. Although Thomas testified in his affidavit that the parties agreed he would be replacing the existing tower, the lease includes no requirement of such replacement-and Thomas testified that the replacement process could take years. As such, the initial term of the lease was 10 years with the option of the lessee to extend the term up to 30 years. The new tower could be constructed in that time, at the plaintiff’s discretion, and not violate the lease. The lease is not unenforceable for failure of the plaintiff (or the original lessee) to construct a new cell phone tower.
3.
The defendant claims the lease is unenforceable because it provides no consideration from Wireless Solutions to the defendant in exchange for the leased premises.
"To be enforceable, a contract must be supported by valuable consideration." Connecticut National Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995). "Whether an agreement is supported by consideration is a factual inquiry ..." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 641, 882 A.2d 98, cert. denied, 276 Conn. 924, 880 A.2d 92 (2005). "It is well established in our case law that the exchange of promises is sufficient consideration to support a finding of the existence of a contract." (Internal quotation marks omitted.) Id. Even if, in hindsight, the exchange of consideration appears lopsided, it must be remembered that "[c]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law." Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 21-22, 420 A.2d 1142 (1979).
In the present case, the lease is supported by consideration. The defendant agreed to lease land to the plaintiff in exchange for 25 percent of monthly rental payments that the plaintiff would collect from users of the tower, pursuant to section 4 of the lease. This is ample consideration: money in exchange for rights to use land.
Nevertheless, the defendant argues that section 4 has a condition precedent through section 15 of the lease. Section 15 provides: "LESSOR covenants that LESSEE on paying the Rent and other charges and performing the covenants, terms and conditions required of LESSEE contained herein, shall peaceably and quietly have, hold and enjoy the Property by virtue of this Agreement." According to the defendant, because the plaintiff has not paid any rent, it has lost the right to use the leased property. This argument is unpersuasive. The parties agreed in section 4 of the lease that the plaintiff would pay monthly rent when it rented out the tower to other users-a right at the heart of this case. That agreement is sufficient consideration. See Russell v. Russell, supra, 91 Conn.App. 641. Whether or not the plaintiff has paid rent under the lease does not mean the lease lacks consideration, let alone that this court lacks subject matter jurisdiction. The lease is not unenforceable for lack of consideration.
C.
The defendant’s third and final ground for the motion to dismiss for lack of subject matter jurisdiction is that there are no justiciable issues and the case is moot. "A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted, ) Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270, 77 A.3d 113 (2013). Specifically, the defendant argues that because the lease is unenforceable, there is no cause of action for breach of contact and this action is moot. This argument merits little discussion. The action is not moot because the plaintiff has a cause of action for breach of a contract with the defendant which, subject to proof and any defenses, is enforceable. There is an actual controversy between the parties: whether the defendant breached the lease; the plaintiff’s and defendant’s interests are adverse; the matter is capable of being adjudicated by this court; and a determination of the controversy will result in relief for the plaintiff, should it prevail. See State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982). Accordingly, the defendant’s motion to dismiss for lack of subject matter jurisdiction on the ground of no justiciable issues is denied.
II
The defendant properly; see Practice Book § 10-30(a)(4); moves to dismiss the complaint on the alternate ground of insufficiency of process for failure of the plaintiff to serve him in compliance with General Statutes § 52-59b(c).
An action commenced by improper service is subject to dismissal. Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). "[W]hen a particular method of serving process is set forth by statute, that method must be followed ... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Id., 401. Where a nonresident individual defendant challenges the court’s jurisdiction over him, it is the plaintiff’s burden to prove such jurisdiction. See Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).
Section 52-59b(c) provides in relevant part: "Any nonresident individual ... over whom a court may exercise personal jurisdiction ... shall be deemed to have appointed the Secretary of the State as [his or her] attorney and to have agreed that any process in any civil action brought against the nonresident individual ... may be served upon the Secretary of the State ... The process shall be served ... upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant’s last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State." See Banning v. Re/Max at the Lake, Superior Court, judicial district of New Haven, Docket No. CV-13-6036005-S (December 30, 2013).
The plaintiff admits that the marshal did not serve the defendant "at least twelve days before the return day," which was April 24, 2018: the marshal served the defendant, through the Secretary of State, on April 30, 2018, six days after the return day. Therefore, the complaint is vulnerable to the present motion.
The plaintiff argues that it could amend the return date pursuant to § 52-72 to comply with § 52-59b(c). Section 52-72(a) provides: "Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective." "[Section] 52-72 is remedial in nature and is to be liberally construed." Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn.App. 617, 624, 117 A.3d 965 (2015). "[A] trial court should permit a plaintiff to amend the return date when, on the basis of the facts of a particular case, the amendment brings process into compliance with the mandatory requirements of both [General Statutes §§] 52-46a and 52-48(b)." Id., 624-25. Statutory time limits unrelated to subject matter jurisdiction are subject to equitable considerations. See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 284, 777 A.2d 645 (2001).
Section 52-46a requires that process be returned to the Superior Court at least six days before the return day. Section 52-48(b) requires that process shall be made returnable no later than two months after the date of the process. The date of the process "refers to the date of the writ of summons or attachment which must be accompanied by the complaint." Haylett v. Commission on Human Rights & Opportunities, 207 Conn. 547, 554-55, 541 A.2d 494 (1988). The date of process in this case was April 11, 2018, meaning the two-month limit to return process pursuant to § 52-48(b) was June 11, 2018. The plaintiff served the defendant, through the Secretary of State, on April 30, 2018, which is the date of service pursuant to § 52-59b(c).
Process was returned to court-
In this case, amending the return date from April 24, 2018, nunc pro tunc, to any Tuesday from May 15, 2018 through June 5, 2018 would bring service of process into compliance with §§ 52-48(b) and 52-59b (c): any such Tuesday would be more than twelve days after service (April 30, 2018) and within the two-month limit pursuant to § 52-48(b) (June 11, 2018). Any such Tuesday would also comply with § 52-46a because the plaintiff’s return of process on April 12, 2018, was more than six days before any of these potential return days.
The court should, pursuant to Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn.App. 624-25, and will permit the plaintiff to make such a motion and will grant it. See Vossbrinck v. Cheverko, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-17-5016825-S (January 19, 2018); Adamovich v. East Hartford, Superior Court, judicial district of Hartford, Docket No. CV-10-6012652-S (February 18, 2011); Brandriff v. Sellas, 40 Conn.Supp. 243, 245, 488 A.2d 853 (1985). Therefore, the defendant’s motion to dismiss for insufficiency of service of process is denied without prejudice to renewal if, within ten days of this ruling, the plaintiff fails to file such a motion and fails to pay the defendant, through his attorney as trustee, two hundred dollars awarded as costs pursuant to General Statutes §§ 52-72 and 52-257(e). See Williams v. Commission on Human Rights and Opportunities, supra, 257 Conn. 284.
CONCLUSION
For the foregoing reasons, and upon the foregoing conditions, the defendant’s motion to dismiss is denied.
i.e., filed-on April 12, 2018.