Inv. Assocs. v. Summit Assocs., Inc.

• Decision Date: 22 November 2011
• Docket Number: No. 32227.,32227.
• Citation: 31 A.3d 820,132 Conn.App. 192
• Parties: INVESTMENT ASSOCIATES v. SUMMIT ASSOCIATES, INC., et al.
• Court: Connecticut Court of Appeals

132 Conn.App. 192

31 A.3d 820

INVESTMENT ASSOCIATES

v.SUMMIT ASSOCIATES, INC., et al.

No. 32227.

Appellate Court of Connecticut.

Argued May 18, 2011.Decided Nov. 22, 2011.

Proloy K. Das, with whom was Bernard F. Gaffney, Hartford, for the appellant (defendant Joseph D. Lancia).

Pasquale Young, New Haven, with whom was David Pegnataro, for the appellee (plaintiff).

DiPENTIMA, C.J., and LAVINE and SCHALLER, Js.

DiPENTIMA, C.J.

This appeal arises from the application of 2009 legislation creating a new procedure enabling the enforcement of Connecticut judgments in foreign jurisdictions. The defendant Joseph D. Lancia appeals from the order of the trial court granting the motion to revive a judgment filed by the plaintiff, Investment Associates, pursuant to General Statutes § 52–598(c). ¹ On appeal, the defendant argues that the trial court 1) lacked subject matter jurisdiction to consider the motion to revive because the plaintiff, a joint venture, had no standing, (2) lacked personal jurisdiction over him and (3) failed to provide him with an opportunity to contest the motion. We are not persuaded by the defendant's claims and, accordingly, affirm the judgment of the trial court.

The record reveals the following pertinent facts and procedural history, which are not in dispute. On January 10, 1991, the plaintiff filed suit in the Superior Court seeking to recover on a promissory note assigned to it by the defendants, Summit Associates, Inc., Ned B. Wilson and Lancia.² The summons named “Investment Associates” as the only plaintiff, and the first paragraph of the first count of the plaintiff's complaint alleged: “At all times herein, the plaintiff Investment Associates was a joint venture equally owned by R.S.S. McKosky and Alton W. Seavey, Jr. ...” The defendant appeared through counsel on January 28, 1991. On May 17, 1994, the court rendered judgment in favor of the plaintiff in the amount of $272,530. The file indicates that the defendant's counsel was present at the time judgment was rendered in favor of the plaintiff. The defendant, however, has not resided in Connecticut since 1992.

More than thirteen years later, in 2007, the plaintiff commenced an action seeking to enforce the judgment. That action was dismissed for lack of personal jurisdiction over the defendant. See Investment Associates v. Lancia, Superior Court, judicial district of New Haven, No. CV–07–4028746S, 2008 WL 2168983 (May 5, 2008) (45 Conn. L. Rptr. 437). Thereafter, on October 6, 2009, pursuant to § 52–598(c),³ the plaintiff filed a motion to revive the judgment in the original action alleging that the judgment remained unpaid. In response, the defendant filed a motion to dismiss. The court issued its memorandum of decision granting the plaintiff's motion to revive and denying the defendant's motion to dismiss.⁴ After the defendant's motion to reargue was denied, the defendant filed this appeal.

I

On appeal and for the first time, the defendant raises a challenge to the trial court's subject matter jurisdiction. Specifically, the defendant notes that in the plaintiff's original complaint, the plaintiff alleged that it was a joint venture. According to the defendant, a joint venture is not a legal entity, and therefore the plaintiff lacked standing to file its motion to revive the judgment, and, therefore, the court lacked subject matter jurisdiction. In response, the plaintiff admits that it is a joint venture but argues that it does have legal capacity because our legislature has given joint ventures substantive legal rights through many statutes. Alternatively, the plaintiff argues that even if a joint venture lacks legal capacity, such status does not deprive a court of subject matter jurisdiction.

After oral argument, we requested and the parties filed supplemental briefs on whether the defendant's challenge to the court's subject matter jurisdiction was timely. Specifically, we instructed: “Counsel are sua sponte ordered to file simultaneous supplemental briefs of no more than ten pages on or before August 4, 2011, addressing and explaining how the following language from Urban Redevelopment Commission v. Katsetos, 86 Conn.App. 236, 241, 860 A.2d 1233 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1289 (2005), relates to the [defendant's] challenge to the trial court's subject matter jurisdiction: ‘Our Supreme Court, however, has stated that there are boundaries to challenges concerning the issue of subject matter jurisdiction. As we have only recently observed ... [ t ] he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal. James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, esp. 695–97; Restatement (Second), Judgments 15 (Tent. Draft No. 5 1978).... Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. James & Hazard, op. cit. 695; Restatement (Second), Judgments, supra.’ [Emphasis in original.].”

An examination of Urban Redevelopment Commission v. Katsetos, supra, 86 Conn.App. 236, 860 A.2d 1233, is instructive in the resolution of this case. After adopting an urban renewal plan, the city of Stamford acquired certain properties. Id., at 237, 860 A.2d 1233. The trial court rendered a judgment pursuant to a stipulation of the parties where the defendant received a total of $720,000 in exchange for transferring his property to the city and agreeing to waive any and all claims. Id., at 238, 860 A.2d 1233. Three years later, the defendant filed a motion to open the judgment, claiming that the court had lacked jurisdiction over the parties and the judgment was void ab initio. Id. The defendant stated that in Aposporos v. Urban Redevelopment Commission, 259 Conn. 563, 790 A.2d 1167 (2002), our Supreme Court concluded that “the condemnation proceedings were invalid as a result of the commission's failure to follow the relevant statutory requirements. Id., at 579–80 .” Urban Redevelopment Commission v. Katsetos, supra, at 238, 860 A.2d 1233. The trial court denied the defendant's motion to open on the ground that it was filed more than four months after the judgment had been rendered. Id., at 239, 860 A.2d 1233 We affirmed the judgment of the trial court on a different basis, namely, the principle of finality of judgments. Id., at 239–44, 860 A.2d 1233.

After stating the general rule that a challenge to subject matter jurisdiction may be raised at any time, we noted that the modern law of civil procedure indicates that finality of judgment may limit challenges to subject matter jurisdiction. Id., at 240–41, 860 A.2d 1233. We then identified various factors, including whether the parties had had an opportunity to challenge the jurisdiction of the court, whether it was a direct or a collateral attack on the judgment, whether the parties had consented to the jurisdiction, the prevention of a miscarriage of justice, whether the subject matter was so far beyond the jurisdiction of the court as to constitute an abuse of authority, the desirability of the finality of judgment and whether there are strong policy reasons for allowing a second opportunity to raise the issue of subject matter jurisdiction. Id., at 241–43, 860 A.2d 1233.

Applying the Katsetos factors, we concluded that because the defendant had accepted the financial benefit of the stipulation rather than the uncertainty of a direct appeal, his motion to open the judgment was a collateral attack on that judgment and he had failed to raise any objection to the jurisdiction of the court at the time of the sale, the motion to open properly was denied. Id., at 243–44, 860 A.2d 1233. We further noted that there was no miscarriage of justice or strong policy reason that would warrant a reversal of the trial court's judgment. Id., at 244, 860 A.2d 1233.

In the present case, the defendant argues in his supplemental brief that the issue before this court is whether the plaintiff had standing to file the 2009 motion to revive and that we need not consider the standing issue with respect to the 1994 judgment. He distinguishes this case from Katsetos because it involves a direct challenge to the 2009 motion to revive, while the Katsetos defendant's challenge was to the original judgment of the trial court. Additionally, the defendant contends that he has used the standing issue as a defense to a motion to revive, while in Katsetos the jurisdictional issue was the basis of the defendant's motion to open.

The plaintiff commenced the underlying action in January, 1991, and judgment was rendered in its favor on May 17, 1994. The plaintiff's motion to revive, ⁵ filed on October 6, 2009, nearly nineteen years after the commencement of the lawsuit and approximately fifteen and one-half years after the original judgment had been rendered, was not the beginning of a new suit against the against the defendant. It was a “continuation” of the original suit, “another step taken in the original action to aid in the recovery of a debt evidenced by the original judgment, in order to obtain enforcement of the original judgment....” 46 Am.Jur.2d 700, Judgments § 394 (2006). Put another way, the plaintiff did not commence a new civil action when the plaintiff filed the motion to revive. See General Statutes § 52–598(c). Notably, the plaintiff did not use the procedures set forth in General Statutes § 52–45a ⁶ in filing the 2009 motion. See, e.g., Bernhard–Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554–59, 944 A.2d 329...