Albert J. Wambolt et al. v. Anne Cullagh et al. (2011)

MEMORANDUM OF DECISION RE REQUEST FOR LEAVE TO AMEND

I

FACTS

On January 18, 2011, the plaintiffs, Albert Wambolt and Vanessa Wambolt, filed an amended and revised complaint against the defendants, Timothy Cullagh, Anne Cullagh, Regan Realtors and Peg Lynch, seeking damages arising out of the plaintiffs' purchase of property located at 15 Wayland Street, North Haven, Connecticut (the property).   On March 4, 2011, Regan Realtors and Peg Lynch, as apportionment plaintiffs, filed separate apportionment complaints against the apportionment defendants, Schaefer Inspection Services (Schaefer) (# 122), and Coldwell Banker and Joseph Cafasso (# 123).

On April 6, 2011, the plaintiffs filed the present request for leave to amend their complaint (# 127) by adding party defendants Coldwell Banker, Joseph Cafasso and Schaefer Inspection Services, in accordance with the apportionment complaints filed by Regan Realtors and Peg Lynch.   On April 12, 2011, Coldwell Banker and Joseph Cafasso (collectively, Coldwell Banker defendants) filed a motion to dismiss the apportionment complaint (# 128) and on April 15, 2011, the Coldwell Banker defendants filed an objection to the plaintiffs' request for leave to amend (# 129).   Likewise, on May 5, 2011, Schaefer filed a motion to dismiss the apportionment complaint (# 132) and an objection to the plaintiffs' request for leave to amend (# 131).

This matter was heard on the May 9, 2011 short calendar.   On May 31, 2011, a motion for extension of time to respond to the motion to dismiss was granted. (# 134.10 J.Lager).

II

DISCUSSION

The plaintiffs request leave to amend their complaint to add the apportionment defendants as party defendants in accordance with the apportionment complaints.   The Coldwell Banker defendants object to the plaintiffs' request arguing that the court lacks jurisdiction over them.   According to the Coldwell Banker defendants, the apportionment complaint was not served on them with any summons and therefore failed to comply with General Statutes § 52–102a's requirement for initiating an apportionment complaint.   For the aforementioned reasons, the Coldwell Banker defendants filed a motion to dismiss the apportionment complaint on the grounds of insufficient process, insufficient service of process and lack of subject matter jurisdiction.   The motion to dismiss is pending with the court.   Therefore, the Coldwell Banker defendants argue that until such time as the court determines whether the Coldwell Banker defendants are properly a party to the lawsuit, it is premature for the plaintiffs to plead over by filing an amended complaint against the Coldwell Banker defendants.

Schaefer also objects to the plaintiffs' request for leave to amend arguing that the court lacks jurisdiction over it.   According to Schaefer, the apportionment complaint was not served with any summons and therefore failed to comply with General Statutes § 52–102a's requirement for initiating an apportionment complaint.   Morever, Schaefer contends that the plaintiffs are bound by the terms of an arbitration agreement which was contained in the agreement for inspection of the property.   According to Schaefer, the arbitration agreement states that arbitration is a condition precedent to any right of action arising out of the contract.   Schaefer filed a motion to dismiss the apportionment complaint and the motion is pending with the court.¹  Therefore, Schaefer argues that until such time as the court determines whether it is properly a party to the lawsuit, it is premature for the plaintiffs to plead over by filing an amended complaint against it.

A

Analysis

The Coldwell Banker defendants move to dismiss the apportionment complaint on the grounds of insufficient process, insufficient service of process and lack of subject matter jurisdiction.   Although Schaefer's motion to dismiss itself does not specify the exact grounds for which it seeks dismissal, Schaefer alleges that the court lacks jurisdiction over it because (1) the apportionment complaint was not served with any summons and therefore failed to comply with General Statutes § 52–102a's requirement for initiating an apportionment complaint;  and (2) the plaintiffs are bound by the terms of an arbitration agreement, which states that arbitration is a condition precedent to any right of action arising out of the contract.   Although the arbitration claim does not implicate subject matter jurisdiction;  see LeClair v. Scholastic Mortgage, LLC, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 09 5009989 (January 13, 2010, Rodriguez, J.) (49 Conn. L. Rptr. 202) citing Catrini v. Erickson, 113 Conn.App. 195, 197, 966 A.2d 275 (2009);  the claim of failure to comply with the procedural requirements of General Statutes § 52–102a does implicate the court's subject matter jurisdiction.   See Adgers v. Hines Sudden Service, Superior Court, judicial district of Hartford, Docket No. CV 98 0577380 (September 20, 1999, Teller, J.) (25 Conn. L. Rptr. 500).

“Subject matter jurisdiction [implicates] 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 objection of want of jurisdiction may be made at any time ․ [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”  (Internal quotation marks omitted.)  Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).

“Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”  (Internal quotation marks omitted.)  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).

Accordingly, until the court addresses the motions to dismiss for lack of subject matter jurisdiction, it cannot address the plaintiff's request for leave to amend the complaint.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. Schaefer did not state the specific grounds in its motion to dismiss and failed to file a supporting memorandum of law as required by Practice Book § 10–31(a)..  FN1. Schaefer did not state the specific grounds in its motion to dismiss and failed to file a supporting memorandum of law as required by Practice Book § 10–31(a).

Burke, Richard E., J.