Gillon v. Bysiewicz

• Decision Date: 05 February 2008
• Docket Number: No. 27879.,27879.
• Citation: 939 A.2d 605,105 Conn.App. 654
• Court: Connecticut Court of Appeals
• Parties: Robert J. GILLON, Jr., et al. v. Susan BYSIEWICZ et al.

939 A.2d 605

105 Conn.App. 654

Robert J. GILLON, Jr., et al. v. Susan BYSIEWICZ et al.

No. 27879.

Appellate Court of Connecticut.

Argued October 15, 2007.

Decided February 5, 2008.

Daniel W. Moger, Jr., Greenwich, for the appellants (plaintiffs).

Robert W. Clark, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

William T. Blake, Jr., with whom, on the brief, was Stephen P. Wright, Milford, for the appellee (defendant R.S. Silver Enterprises, Inc.).

McLACHLAN, GRUENDEL and BERDON, Js.

BERDON, J.

The plaintiffs, Robert J. Gillon, Jr., Nicholas DeLuca and Signature Group, LLC, appeal from the judgment of the trial court dismissing their application for a writ of mandamus against one of the defendants, Susan Bysiewicz, the secretary of the state (secretary), for lack of subject matter jurisdiction. Specifically, the plaintiffs argue that the court improperly concluded that they lacked standing to challenge the secretary's corporate reinstatement of R.S. Silver & Company, Inc.¹ We conclude that the court properly dismissed the plaintiffs' complaint because the plaintiffs lacked standing and, accordingly, affirm the judgment of the trial court.

The following facts, as alleged in the complaint, and procedural history are relevant to our resolution of the plaintiffs' appeal. On October 25, 1991, a corporation known as R.S. Silver & Company, Inc., was administratively dissolved for failure to file reports required by law.² Thereafter, on September 20, 2001, the secretary accepted articles of organization for R.S. Silver & Company, LLC,³ a limited liability company that had acquired "all rights in the name of `R.S. Silver & Co.' and any variation of the name. . . ." On February 9, 2006, pursuant to General Statutes § 33-892,⁴ the secretary issued a certificate of reinstatement and name change for R.S Silver & Company, Inc., which reinstated the administratively dissolved corporation and changed the name of the company to R.S. Silver Enterprises, Inc. The plaintiffs thereafter filed an action in the Superior Court seeking a writ of mandamus to compel the secretary to revoke the reinstatement of R.S. Silver Enterprises, Inc., and to correct the state's corporation records. In their complaint, the plaintiffs alleged that the secretary lacked statutory authority to reinstate R.S. Silver & Company, Inc., under General Statutes § 33-995 because that authority applies only to corporations that were in existence on January 1, 1997, and that R.S. Silver & Company, Inc., was not in existence on that date.⁵

Subsequently, the secretary and R.S. Silver Enterprises, Inc., filed separate motions to dismiss the plaintiffs' complaint for lack of subject matter jurisdiction. In the memoranda in support of their motions to dismiss, the defendants argued, inter alia, that the plaintiffs lacked standing to maintain this action because they had failed to demonstrate that they had been classically or statutorily aggrieved by the secretary's reinstatement decision. The court granted the defendants' motions to dismiss. In rendering its decision, the court first referenced the reasoning set forth in the secretary's memorandum in support of her motion to dismiss. Thereafter, pursuant to Practice Book §§ 64-1(a) and 6-1, the court issued a supplemental decision, which adopted the "recital of facts and legal reasoning" set forth in the defendants' trial memoranda.⁶

On appeal, in support of their claim, the plaintiffs refer to allegations in their complaint, which allege that in reliance on their understanding of the scope of the secretary's powers under the Connecticut Business Corporation Act (act), General Statutes § 33-600 et seq., an agreement was entered into wherein "[a]ll rights in the name `R. S. Silver & Co.' and any variation of the name were assigned to a new limited liability company," R.S. Silver & Company, LLC, and, in further reliance, Gillon and DeLuca invested more than $800,000 in this company. The plaintiffs maintain that these allegations are sufficient to establish their standing to challenge the secretary's reinstatement decision. The plaintiffs also claim that because the act was intended to protect the interests of third parties, they have statutory standing. In response, the secretary argues that the plaintiffs have failed to allege any facts establishing that her reinstatement decision directly injured any of the plaintiffs' personal or legal interests and that the act does not provide the plaintiffs with an express statutory right to challenge a corporate reinstatement decision. Furthermore, the secretary argues that the plaintiffs do not fall within the zone of interests that the statutes in question were designed to protect. We agree with the secretary.

"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . When a . . . 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." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. . . . A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 287, 933 A.2d 256 (2007).

"The concept of standing as presented . . . by the question of aggrievement is a practical and functional one designed to assure that only those with a genuine and legitimate interest can [pursue] an [action in court]." (Internal quotation marks omitted.) Munhall v. Inland Wetlands Commission, 221 Conn. 46, 54-55, 602 A.2d 566 (1992). "Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, supra, 284 Conn. at 288, 933 A.2d 256. "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Id. "Furthermore, [i]t is settled that the existence of statutory standing [also] depends on whether the interest sought to be protected by the [plaintiffs] is arguably within the zone of interests to be protected or regulated by the statute. . . ." (Internal quotation marks omitted.) Id., at 289, 933 A.2d 256.

In the present case, we conclude that the plaintiffs have failed to establish that they are classically or statutorily aggrieved. On appeal, the plaintiffs have asserted that they are aggrieved because the secretary's reinstatement of R.S. Silver & Company, Inc., adversely affected their private contractual rights. Although the plaintiffs may possess such a contractual interest, any breach of the alleged agreement was not proximately caused by the secretary's reinstatement of R.S. Silver & Company, Inc.⁷ Because any harm was necessarily occasioned by the alleged breach of a contractual provision allegedly entered into between the plaintiffs and R.S. Silver & Company, Inc., any harm to the plaintiffs resulting from the secretary's reinstatement of R.S. Silver & Company, Inc., was indirect and, therefore, cannot provide an adequate basis for finding aggrievement.⁸

See id., at 288, 933 A.2d 256 ("[t]he requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant . . . is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue" [internal quotation marks omitted]).

Moreover, as to the plaintiffs' assertion that they are statutorily aggrieved because they are a contract purchaser of rights to the name R.S. Silver & Company and any derivative names, we note that the dissolution and reinstatement provisions of the act do not provide enforcement rights to third parties. "If the legislature had intended to grant such a broad right, it easily could have done so expressly. See, e.g., General Statutes § 22a-16 (`any person . . . [or] corporation . . . may maintain an action . . . for declaratory and equitable relief against the state . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction'); General Statutes § 13a-50 (`any person may appear and be heard in relation to [the] application [to discontinue a highway]')." Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 203-204, 896 A.2d 809 (2006). In reaching our conclusion, we also are persuaded by the fact that the legislature, in General Statutes § 33-893, provided the administratively dissolved corporation with a right to...