Sullivan v. Thorndike

• Decision Date: 06 November 2007
• Docket Number: No. 27339.,27339.
• Citation: 104 Conn.App. 297,934 A.2d 827
• Court: Connecticut Court of Appeals
• Parties: John SULLIVAN v. Thomas THORNDIKE et al.

934 A.2d 827

104 Conn.App. 297

John SULLIVAN v. Thomas THORNDIKE et al.

No. 27339.

Appellate Court of Connecticut.

Argued March 13, 2007.

Decided November 6, 2007.

Robert H. Boynton, Milford, for the appellant (plaintiff).

Jason L. Musante, with whom, on the brief, was Audrey J. Porzio, Waterbury, for the appellee (named defendant).

DiPENTIMA, McLACHLAN and McDONALD, Js.

DiPENTIMA, J.

In this appeal, we address the parameters of a dismissal entered pursuant to Practice Book § 15-8. The plaintiff, John Sullivan, appeals from the judgment of the trial court dismissing his complaint against the defendant Thomas Thorndike¹ on the ground that the plaintiff failed to make out a prima facie case of breach of contract and embezzlement pursuant to Practice Book § 15-8. On appeal, the plaintiff claims that (1) he presented sufficient evidence that established damages as an element of his breach of contract claim and the defendant's misappropriation of funds as an element of his embezzlement claim, (2) the court improperly based its granting of the defendant's motion to dismiss on his special defenses and (3) the court improperly vacated the plaintiff's prejudgment remedy prior to a final judgment on the pending appeal. We affirm in part and reverse in part the judgment of the trial court.

We view the evidence presented by the plaintiff in the light most favorable to him. Toward the end of 1996, the parties, who were longtime social acquaintances, made an oral agreement to form a limited liability corporation for the purpose of purchasing and selling certain pieces of real estate. On January 10, 1997, the defendant formed Diko Development, LLC (Diko). The only two members of Diko were the defendant and his wife, Theresa Thorndike. The plaintiff was not a member of Diko. In February, 1997, three parcels of real estate were purchased through Diko with funds contributed by both the plaintiff and the defendant.² All three properties were eventually sold in 1998 and 2000. The plaintiff brought this claim against the defendant in 2001, alleging breach of contract and embezzlement arising from the parties' failed attempt to form the limited liability company with the parties as members. The plaintiff filed an application for a prejudgment remedy seeking to attach property belonging to the defendant, which the court granted on February 21, 2001. A trial to the court was held, and, at the end of the plaintiff's case, the defendant moved to dismiss the action for failure to make out a prima facie case pursuant to Practice Book § 15-8. The court granted the defendant's motion, and the case was dismissed. In its dismissal, the court ruled that the plaintiff had not made out a prima facie case of breach of contract because he failed to establish damages and had not made out a prima facie case of embezzlement because he failed to establish ownership of the property at issue. The court also based its ruling on its determination that the plaintiff's breach of contract claim was barred by the defendant's special defenses: the statute of limitations and statute of frauds. The plaintiff subsequently filed a motion to reargue and a motion for a new trial. The defendant filed a motion to vacate the prejudgment remedy. On January 11, 2006, the court issued a decision denying the plaintiff's two motions and granting the defendant's motion to vacate the prejudgment remedy. This appeal followed.

I

Before addressing the plaintiff's claims on appeal, we first must consider the threshold question raised by the defendant of whether this court lacks subject matter jurisdiction to hear this appeal. "[J]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007). The defendant challenges this court's jurisdiction to hear the present appeal on the basis of the plaintiff's failure to name Diko as a party to this action. We note that Diko's absence as a defendant does not affect our jurisdiction over this appeal; see General Statutes § 52-263; and we are not precluded from addressing the issue of whether its absence may implicate the subject matter jurisdiction of the trial court. See Gemmell v. Lee, 42 Conn.App. 682, 684 n. 3, 680 A.2d 346 (1996); see also Bauer v. Souto, 277 Conn. 829, 838, 896 A.2d 90 (2006). We conclude, therefore, that we do have jurisdiction over this appeal.

With respect to whether the trial court had subject matter jurisdiction over the underlying action, our standard of review is well established. Our Supreme Court has "long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 6, 917 A.2d 966 (2007). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Pritchard v. Pritchard, 281 Conn. 262, 275, 914 A.2d 1025 (2007). Following our Supreme Court's reasoning, we previously have stated: "The nonjoinder of a party implicates the court's subject matter jurisdiction and therefore requires dismissal if a statute mandates the naming and serving of the party." (Emphasis added.) Demarest v. Fire Dept., 76 Conn.App. 24, 30-31, 817 A.2d 1285 (2003); see also Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 634-35, 563 A.2d 293 (1989). The defendant has not cited any statute that requires the plaintiff to name Diko as a party to the present action. Moreover, even if Diko is an indispensable party, if it is not "required by statute to be made a party, the court's subject matter jurisdiction is not implicated and dismissal is not required." Demarest v. Fire Dept., supra, at 31, 817 A.2d 1285. We conclude, therefore, that the trial court had subject matter jurisdiction over the underlying action.

II.

The plaintiff first claims that he presented evidence that, when viewed most favorably to making out a prima facie case of breach of contract and embezzlement, established damages as an element of his breach of contract claim and the defendant's misappropriation of funds as an element of the embezzlement claim.

As an initial matter, we set forth the applicable standard of review. Practice Book § 15-8 provides in relevant part: "If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . ." "A prima facie case . . . is one sufficient to raise an issue to go to the trier of fact. . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . In evaluating [the trial court's decision on] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 54-55, 913 A.2d 407 (2007); Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000). "Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary." (Internal quotation marks omitted.) Winn v. Posades, supra, at 55, 913 A.2d 407; DiStefano v. Milardo, 276 Conn. 416, 422, 886 A.2d 415 (2005).

A Breach of Contract

The plaintiff claims that the court improperly concluded that he failed to present sufficient evidence of damages as an element of his breach of contract claim to survive the defendant's motion for a judgment of dismissal.³ We agree.

"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn. App. 699, 706-707, 905 A.2d 1236 (2006). With respect to damages, our Supreme Court has clarified that lost profits are considered an element of compensatory damages. Ambrogio v. Beaver Road Associates, 267 Conn. 148, 155, 836 A.2d 1183 (2003). "[O]ur case law unequivocally supports awarding lost profits as an element of compensatory damages for general breach of contract claims. The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed.... The Restatement (Second) of Contracts divides a defendant's recovery into two components: (1) direct damages, composed of the loss in value to him of the other party's performance caused by its failure or deficiency; 3 Restatement (Second), Contracts § 347(a) (1981); plus, (2) any other loss, including incidental or consequential loss, caused by the breach. . . . Id. § 347(b). Traditionally, consequential damages include any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself. . . . Although there is no unyielding formula by which damages are calculated, it is our rule that [u]nless they are too speculative and remote, prospective profits are allowable as an element of damage whenever their loss arises directly from and as a natural...