Cimmino v. Household Realty Corp.

• Decision Date: 13 November 2007
• Docket Number: No. 27768.,27768.
• Citation: 933 A.2d 1226,104 Conn. App. 392
• Court: Connecticut Court of Appeals
• Parties: Robert V. CIMMINO v. HOUSEHOLD REALTY CORPORATION et al.

933 A.2d 1226

104 Conn.App. 392

Robert V. CIMMINO v.HOUSEHOLD REALTY CORPORATION et al.

No. 27768.

Appellate Court of Connecticut.

Argued September 5, 2007.

Decided November 13, 2007.

Robert V. Cimmino, pro se, the appellant (plaintiff).

Jonathan S. Bowman, Bridgeport, with whom was Jason A. Buchsbaum, Danbury, for the appellee (named defendant).

Juris V. Zauls, for the appellee (defendant Karen I. Tucker).

FLYNN, C.J., and GRUENDEL and BERDON, Js.

GRUENDEL, J.

The plaintiff, Robert V. Cimmino, appeals from the judgment of the trial court dismissing his action against the defendants, Household Realty Corporation(Household) and Karen I. Tucker, for lack of subject matter jurisdiction.On appeal, the plaintiff claims that the court improperly concluded that he lacked standing.We disagree and, accordingly, affirm the judgment of the trial court.

The underlying facts are as follows.The plaintiff, an attorney licensed to practice law in Connecticut, originally owned, with his wife, certain property in Sherman known as 37 Anderson Road.In an effort to insulate the property from creditors, a complex series of transactions followed, in which various interests in the property were passed to the plaintiff's children, Christopher A. Cimmino and Tucker.Ultimately, an entity named Lincoln Commercial Services foreclosed on the property and thereafter conveyed title to Christopher A. Cimmino and Tucker.

On November 12, 1999, Christopher A. Cimmino and Tucker executed a note on the property in the amount of $296,000, which was secured by a mortgage in favor of Household.In his amended complaint, the plaintiff alleged that he and Tucker agreed that he would make payments on the note.The plaintiff further acknowledged that in August, 2002, he defaulted on that obligation.As a result, Household commenced an action of foreclosure against Christopher A. Cimmino and Tucker.¹

Thereafter, Christopher A. Cimmino and Tucker entered into a stipulated judgment with Household.A judgment of strict foreclosure entered, and a deed to the property was delivered to Household.Prior to the recording of that deed, the plaintiff filed the present action to set aside the judgment of foreclosure.Household subsequently filed a motion for summary judgment in which it alleged, inter alia, that the plaintiff lacked standing to bring any claims against Household because the plaintiff did not have any interest in the subject property, nor was hea party to either the note or the mortgage foreclosed upon.The court agreed and dismissed the plaintiff's complaint.From that judgment, the plaintiff now appeals.

"[A]party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . .Standing is the legal right to set judicial machinery in motion.One cannot rightfully invoke the jurisdiction of the court unless he 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. . . .[Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. . . .[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . .Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent. . . .Standing [however] 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."(Citations omitted; internal quotation marks omitted.)Webster Bank v. Zak,259 Conn. 766, 774, 792 A.2d 66(2002)."Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause."(Internal quotation marks omitted.)Blakeney v. Commissioner of Correction,47 Conn.App. 568, 574, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830(1998).Our review of the question of the plaintiff's standing is plenary.SeeWest Farms Mall, LLC v. West Hartford,279 Conn. 1, 12, 901 A.2d 649(2006).

"Standing is established by showing that the party . . . is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved. . . .The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [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]."(Internal quotation marks omitted.)Wesley v. Schaller Subaru, Inc.,277 Conn. 526, 538, 893 A.2d 389(2006).

At the time that Household commenced the foreclosure action, the plaintiff possessed no ownership right in the property.As the court observed, he had no legal, recorded title interest in the property.Moreover, the plaintiff was not a party to the note or mortgage being foreclosed."It is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract. . . .Under this general proposition, if the plaintiff is neither a party to, nor a contemplated beneficiary of, [the] agreement, she lacks standing to bring her claim for breach of the agreement."(Citations omitted; internal quotation marks omitted.)Tomlinson v. Board of Education,226 Conn. 704, 718, 629 A.2d 333(1993).The plaintiff's argument resembles that of the defendant in Barnes v. Upham,93 Conn. 491, 107 A. 300(1919), to which our Supreme Court replied that "the defendant, by a conveyance of the equity, had parted with his entire interest in the premises.As the record title stood he had no interest in the premises sufficient to give him a standing in the foreclosure proceedings, and therefore was not in law entitled to notice."Id., at 494, 107 A. 300.The same logic applies here.

The plaintiff nevertheless maintains that his claim to ownership of the property "rests in the creation of a constructive trust" between him and the record owners of the property, Christopher A. Cimmino and Tucker.That claim was not presented to the trial court.The plaintiff's amended complaint never referenced a "constructive trust" nor did...