Youngman v. Schiavone

Decision Date05 May 2015
Docket NumberAC36207
CourtAppellate Court of Connecticut




May 5, 2015

GRUENDEL, J., dissenting. In affirming the judgment of the trial court, the majority concludes that the court did not abuse its discretion when it denied the motion to substitute filed by the plaintiffs, Carl Youngman and Leslie Charm. I disagree, and write separately because I believe that the court abused its discretion in two respects. First, the court improperly ruled on the motion to dismiss filed by the defendants Joel Schiavone and Gary Bello1 before ruling on the plaintiffs' motion to substitute. Second, although the court went on to consider the motion to substitute, in doing so, it misapplied the substantive requirements of General Statutes § 52-109. I, therefore, respectfully dissent from the majority opinion and would reverse the judgment of the court for further proceedings according to law.


I first address the court's determination that it could not consider the plaintiffs' motion to substitute because the plaintiffs lacked standing. As our court has previously held that § 52-109 extends jurisdiction to the extent necessary to rule on a motion to substitute, I would conclude that the court's ruling was incorrect and, thus, an abuse of discretion.

The following procedural history is relevant to the present appeal. On May 31, 2013, one day after the plaintiffs filed a motion to substitute, the defendants filed a motion to dismiss for lack of subject matter jurisdiction on the basis that the individual plaintiffs did not have standing because the harms alleged in the complaint were suffered by Quinnipiac Riverview Properties, LLC (Riverview). Nearly five months later, the court granted the defendants' motion to dismiss after concluding that the plaintiffs lacked standing in their individual capacities. The court then denied the plaintiffs' motion to substitute. On April 14, 2014, the court issued a memorandum of decision regarding its denial of the plaintiffs' motion to substitute, stating that "[b]ecause the plaintiffs did not have standing to bring this action, the court was deprived of subject matter jurisdiction to hear the claims or any motions, including the motion to substitute, of the plaintiffs." (Emphasis added.) It is this conclusion that I believe requires reversal.

This court previously has interpreted § 52-109 as authorizing a limited extension of jurisdiction for the purpose of considering a motion to substitute, even when the named plaintiff otherwise lacks standing. Rana v. Terdjanian, 136 Conn. App. 99, 109, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012). The rationale behind this conclusion is that for "§ 52-109 . . . to have the ameliorative purpose for which it

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was intended . . . the statute is meant to give the trial courts jurisdiction for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs." (Internal quotation marks omitted.) Id., 111. "The legislature's provision of this statutory remedy would be completely undermined by any rule requiring the immediate dismissal for lack of subject-matter jurisdiction of any action commenced in the name of the wrong person as plaintiff. The statute, as an exercise of the legislature's constitutional authority to determine [our court's] jurisdiction; [Conn. Const., art. V, § 1]; must be seen as an extension of that jurisdiction for the limited purpose of deciding a proper motion to substitute." (Internal quotation marks omitted.) Id., 111-12, quoting DiLieto v. County Obstetrics & Gynecology Group, P.C., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-970150435S (January 31, 2000) (26 Conn. L. Rptr. 345), rev'd on other grounds, 265 Conn. 79, 828 A.2d 31 (2003).

In the present case, the court determined that, because the plaintiffs lacked standing, it was precluded from entertaining any of their motions, including the motion to substitute. This reasoning is in direct opposition to our case law, which has concluded that § 52-109 extends the court's subject matter jurisdiction to the extent necessary to consider the plaintiffs' motion to substitute. As the majority notes, the court first was required to determine whether the statutory criteria for substitution had been met. If the motion was granted, then the standing issue would be remedied and the case could proceed with Riverview stepping into the shoes of the plaintiffs. F.P., Inc. v. Collegium & Wethersfield, Ltd. Partnership, 33 Conn. App. 826, 830-31, 639 A.2d 527, cert. denied, 229 Conn. 917, 642 A.2d 1211 (1994). If the motion was denied, the court then properly could grant a dismissal on the basis that the plaintiffs lacked subject matter jurisdiction. By failing first to consider the motion to substitute, the court misapplied the law and thus, abused its discretion.2 Hayward v. Hayward, 53 Conn. App. 1, 8, 752 A.2d 1087 (1999) ("[o]ur review of a trial court's exercise of the legal discretion vested in it is . . . whether [it] correctly applied the law and could reasonably have reached the conclusion that it did" [emphasis added; internal quotation marks omitted]).


I next turn to the court's application of § 52-109. Notwithstanding the court's prior determination that it lacked subject matter jurisdiction, the court in fact did proceed to consider the motion to substitute. In denying the motion, the court concluded that a pure mistake of established law could not form the basis of the plaintiffs' requested substitution. I disagree and conclude that, under the statute and our relevant case law, the court

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did not properly apply the correct legal standard in denying the motion to substitute.

Section 52-109 requires the court to conduct a two part inquiry. First, the court must determine whether the case was commenced by the wrong party through mistake. The term "mistake" in our case law has been defined as "an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence that she is the proper person to commence the [action]." (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 151, 998 A.2d 730 (2010).3 Second, the court must inquire as to whether the proposed substitution is necessary for the determination of the real matter in dispute. Id., 150.

In denying the plaintiffs' motion to substitute, the court noted that it was established law that the entity, Riverview, was the proper plaintiff to bring this action. Although it is true that "[a] member may not sue in an individual capacity to recover for an injury the basis of which is a wrong to the limited liability company"; Wasko v. Farley, 108 Conn. App. 156, 170, 947 A.2d 978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008); a member may sue directly when the claim alleged is separate and distinct from that of other members. See Guarnieri v. Guarnieri, 104 Conn. App. 810, 823-24, 936 A.2d 254...

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