Burgos v. Cross Sound Cable Co., No. 480903 (CT 9/20/2005)

• Decision Date: 20 September 2005
• Docket Number: No. 480903,480903
• Court: Connecticut Supreme Court
• Parties: Benjamin Burgos v. Cross Sound Cable Company Opinion No.: 90361

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Unpublished Opinion

Benjamin Burgos v. Cross Sound Cable Company Opinion No.: 90361

No. 480903

Superior Court of Connecticut

Judicial District of New Haven at New Haven

September 20, 2005

MEMORANDUM OF DECISION

BRUCE L. LEVIN, JUDGE.

The defendant, Cross Sound Cable Company, LLC, moves to dismiss this action on the ground that the plaintiffs lacked standing to bring it because they were not the lessees of the shellfish bed at issue. The defendant contends that the court therefore lacks subject matter jurisdiction.

On August 12, 2003, the plaintiffs, Benjamin Burgos, a licensed shellfish harvester, and Ben's Shellfish, LLC, filed a five-count complaint against the defendant. This action arises out of alleged damage to a shellfish bed, the lease for which was allegedly assigned to the plaintiffs, as a result of the defendant's installation of a submerged electric transmission cable across the Long Island Sound, from New Haven, Connecticut to Brookhaven, New York, in May 2002. In the complaint, the plaintiffs allege that Burgos leased a shellfish bed designated as L-590 (lot 590) from the state of Connecticut. Further, they allege that the defendant: (1) negligently installed the cable in a manner that caused excessive amounts of silt, sediment and clay to travel and settle upon the bed; (2) used an unauthorized technique to loosen the cable; (3) caused silt, clay, sediment and other materials to enter the bed; (4) created a nuisance by causing silt sediment, clay and other materials to become waterbourne; and (5) violated the Connecticut Unfair Trade Practices Act, General Statutes §42-110b.

The plaintiffs allege that the defendant's conduct damaged the shellfish in the bed and the bed itself, causing the plaintiffs a loss in revenue and income. They assert claims against the defendant for negligence, trespass, nuisance, equitable relief and for the violation of the Connecticut Unfair Trade Practices Act pursuant to General Statutes §42-110a et seq. The defendant moved to dismiss the action on the ground that the plaintiffs lack standing to bring the claims because they are not the real owners of the shellfish bed lease. The plaintiffs filed a memorandum in opposition to the motion in which they asserted that they have standing by virtue of an assignment in which Alphonse Gambardella and Andrew Verderame, who leased bed L-590 from the state, assigned their interests in the bed to the plaintiffs.

"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 . . . whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "[I]n ruling on a motion to dismiss, the trial 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.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003).

"The grounds which may be asserted in [a motion to dismiss include] . . . lack of jurisdiction over the subject matter . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 417, 797 A.2d 494 (2002).

"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 . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 460, 839 A.2d 589 (2004).

"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003).

"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: [F]irst, 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.) Smith v. Snyder, supra, 267 Conn. 460-61.

"[S]tanding does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief." (Internal quotation marks omitted.) Cottman Transmission System, Inc. v. Hocap Corp., 71 Conn.App 632, 638, 803 A.2d 402 (2002). "When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has legally protected interest that the defendant's action has invaded." (Internal quotation marks omitted.) Id., 639.

I.

The plaintiffs allege that they have standing to maintain this action because they are lessees of lot 590 and that the defendant's conduct damaged their rights in this property. "A lease is a contract." Ingalls v. Roger Smith Hotels Corp., 143 Conn. 1, 6, 118 A.2d 463 (1955). "It is axiomatic that an action upon a contract or for breach of a contract can be brought and maintained by one who is a party to the contract sued upon . . ." (Internal quotation marks omitted.) Cottman Transmission System, Inc. v. Hocap Corp., supra, 71 Conn.App. 639. Thus, on the face on the complaint, the plaintiffs satisfy the test for classical aggrievement in that they allege that they have a specific, personal and lease interest in lot 590 and that the defendant's conduct has specially and injuriously affected their rights. If the defendant had not filed any affidavits in support of its motion to dismiss, the court would end its inquiry here and deny the defendant's motion.

The defendant, however, denies that the plaintiffs have standing and filed affidavits in support of its motion. "Where . . . as here, the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).

Moreover, in some circumstances, "[a] motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment [affidavits], they disclose that no genuine issue of material fact exists . . . When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Citations omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). In such circumstances, "[t]he plaintiff [is] entitled to an evidentiary hearing at which it could attempt to establish its authority before the court [finds] that it lacked that authority." Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003).

When the parties initially argued the motion before this court, the plaintiffs maintained that the court was required to hold an evidentiary hearing on their claim of ratification. After reviewing the motions and the affidavits, the court agreed, and on May 23, 2005, the court convened a hearing. At the hearing, the parties offered, and the court admitted...