O'Reilly v. Valletta

• Decision Date: 20 November 2012
• Docket Number: No. 34054.,34054.
• Citation: 55 A.3d 583,139 Conn.App. 208
• Court: Connecticut Court of Appeals
• Parties: John T. O'REILLY et al. v. Nicolino VALLETTA et al.

139 Conn.App. 208

55 A.3d 583

John T. O'REILLY et al.

v.Nicolino VALLETTA et al.

No. 34054.

Appellate Court of Connecticut.

Argued Sept. 11, 2012.

Decided Nov. 20, 2012.

John T. O'Reilly, pro se, the appellant (named plaintiff).

Daniel J. Krisch, Hartford, with whom was, Agron Etemi, and, on the brief, Thomas P. Lambert, Westport, for the appellee (defendant Robert A. Pformer).

BEAR, SHELDON and WEST, Js.

SHELDON, J.

The dispositive issue in this case is whether the plaintiff, John T. O'Reilly,¹ the owner of HUB Associates, LLC (HUB), a limited liability company that leased commercial premises for the operation of a restaurant in Branford, has standing to sue the defendant, Robert A. Pformer, ² a board member of the condominium association that managed the leased premises, for an alleged violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.CUTPA), based on Pformer's alleged interference with HUB's efforts to advertise its business on the leased premises. The case is now before this court on O'Reilly's appeal from the trial court's judgment in favor of Pformer on that claim, which was rendered after the court granted Pformer's motion to strike that claim on the ground that it failed to state a claim on which relief could be granted under CUTPA. The court ruled, more particularly, that the alleged conduct on which the claim was based involved the management of a condominium association and did not constitute “acts or practices in the conduct of any trade or commerce,” within the meaning of General Statutes § 42–110b (a), as a matter of law. AlthoughPformer contends that the trial court's analysis of the sufficiency of the challenged claim was legally correct, he now urges this court, for the first time on appeal, to rule that O'Reilly lacked standing to bring that claim against him and, thus, that the claim should be dismissed for lack of subject matter jurisdiction.³ Because we agree with Pformer that O'Reilly lacked standing to bring the challenged CUTPA claim against him, we vacate the trial court's judgment on the merits of that claim and remand the case to the trial court with direction to dismiss the second count against Pformer for lack of subject matter jurisdiction.

The following facts, alleged in the complaint filed by O'Reilly and HUB, are pertinent to the resolution of this appeal. On December 24, 2007, O'Reilly, “through his LLC, [HUB]” entered into a lease agreement with Nicolino Valletta, under which HUB rented a commercial condominium owned by Valletta at 420 East Main Street in Branford, for the purpose of operating a restaurant. Although the lease term began on January 1, 2008, and terminated on December 31, 2010, HUB was not required to make rental payments until May 1, 2008, in recognition of the fact that it would need time to prepare the premises for the operation of a restaurant.

As the owner of HUB, O'Reilly completely renovated the leased premises to prepare it for the opening of the new restaurant. That involved, inter alia, the installation of two new roofs on the rented building, for which Valletta refused to pay, despite his contractual obligation to do so under article 14 of the lease agreement. Valletta also refused to pay for a new heating system for the rented building, as requested by O'Reilly, on behalf of HUB, under article 14 of the lease agreement, although over 50 percent of the building was unheated and, thus, unsuitable for use as a restaurant. Notwithstanding these and other difficulties he had in dealing with Valletta during the lease period, O'Reilly cooperated with Valletta throughout that period in an effort to persuade him to sell the leased premises to HUB.

After spending over $140,000 for renovations and new equipment for the leased premises in order to open HUB's new restaurant therein, O'Reilly posted advertising signs for the new restaurant on the premises. After the signs were posted, Pformer began to complain about them. Pformer then personally attempted to remove the signs despite their approval by the town of Branford. Thereafter, without giving notice to O'Reilly of his intention to do so, Pformer conducted a hearing of the condominium association board (board) with respect to the signs, at which the board imposed a fine on the unit owner, which ultimately was levied against HUB, for displaying them. Following the hearing, Pformer and Valletta jointly removed the signs from the leased premises, thereby allegedly harming the restaurant's business and causing it to incur costs to build new advertising signs.

On the basis of the foregoing allegations, O'Reilly and HUB filed a two count complaint against Pformer and Valletta on or about June 24, 2011. In the first count of the complaint, they alleged that Valletta had violated the lease agreement and breached the implied covenant of good faith and fair dealing arising under it by requiring them to expend over $140,000 to renovate the leased premises, later denying that they had made such payments, and ultimately attempting to evict them from the premises to promote his own failing financial interests. In count two of the complaint, O'Reilly and HUB complained: that, by removing the advertising signs from the leased premises, Pformer and Valletta had attempted to deprive them of their “fair business rights”; that, by denying them notice of the hearing before the condominium board, Pformer had interfered with their contractual rights under the lease agreement; and that, by their collective and individual conduct, Pformer and Valletta had engaged in unfair and deceptive trade practices that caused them serious financial damage, in alleged violation of CUTPA.

On August 16, 2011, Pformer filed a motion to strike the second count for failure to allege “acts or practices in the conduct of any trade or commerce”; General Statutes § 42–110b (a); as required to prove a violation of CUTPA. The trial court granted the motion to strike on October 3, 2011. Pformer subsequently filed a motion for judgment on the stricken count. O'Reilly and HUB filed an objection to Pformer's motion for judgment. On October 31, 2011, the trial court granted Pformer's motion for judgment. This appeal followed.

Pformer now claims that O'Reilly's CUTPA claim against him, as pleaded in the second count of the complaint, should be dismissed for lack of subject matter jurisdiction because O'Reilly lacked standing to bring that claim. “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010).

“[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotations marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 64, 946 A.2d 862 (2008). “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.” (Internal quotation marks omitted.) Retirement Program for Employees of the Town of Fairfield v. Madoff, 130 Conn.App. 710, 716, 26 A.3d 93 (2011). “[A]s a general rule, a plaintiff lacks standing unless the harm alleged is direct rather than derivative or indirect.” Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 481, 863 A.2d 645 (2005).

“It is axiomatic that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the...