L. Hall v. Stanley Bergman, Esq. et al. (2011)

MEMORANDUM OF DECISION Re Defendant's Motion to Dismiss # 286

I

PROCEDURAL BACKGROUND

The plaintiff commenced this action on December 6, 2000, against Stanley Bergman, trustee, Rhoda Cohn, Stuart Cohn and The Joel Cohn Revocable Trust (Trust).   Bergman and Rhoda Cohn were trustees of the trust, and Stuart Cohn the beneficiary of the trust.   Prior to trial on May 13, 2004, the plaintiff withdrew the claims against Bergman (# 228).   At all times relevant, the Trust was the owner of a condominium known as 16–18–20 Temple Court in New Haven (condominium).   The second amended complaint (# 249), dated February 15, 2005 is the operative complaint, and consists of five counts.   Count one alleged unjust enrichment against Rhoda Cohn and Stuart Cohn and the Trust;  count two alleged vexatious litigation against Rhoda Cohn and the Trust;  count three alleged negligent infliction of emotional distress and physical harm against Rhoda Cohn and Stuart Cohn and the Trust;  and count four alleged intentional infliction of emotional distress and physical harm against Rhoda Cohn and Stuart Cohn and the Trust.   Count five alleged a violation of the Connecticut Unfair Trade Practices Act;  General Statutes § 42–110 et seq.;   but that count was withdrawn at trial.

The matter was tried to a jury which rendered a verdict for the plaintiff against the defendant Stuart Cohn but awarded no damages.   As to the defendant Rhoda Cohn, the jury rendered a verdict in her favor and against the plaintiff (# 254.25).¹  Thereafter, the court denied the plaintiff's motion to set aside the verdict in favor of defendant Rhoda Cohn (# 260) [39 Conn. L. Rptr. 573] and granted the plaintiff's motion to set aside the verdict and for a new trial against defendant Stuart Cohn (# 259).   The court rendered judgment in favor of Rhoda Cohn and ordered a new trial against defendant Stuart Cohn (# 264).

The plaintiff filed an appeal of the judgment in favor of defendant Rhoda Cohn and the defendant Stuart Cohn filed a separate appeal of the judgment to the extent that it set aside the verdict as to him and ordered a new trial.   The Appellate Court affirmed the superior court decisions.  Hall v. Bergman, 106 Conn.App. 660, 681, 943 A.2d 515 (2008).   Thereafter, defendant Stuart Cohn appealed to the Connecticut Supreme Court and that court affirmed the Appellate Court's decision and remanded the case to the superior court for a new trial as to him.  Hall v. Bergman, 296 Conn 169, 185, 994 A.2d 666 (2010).   None of the verdicts or appeals addressed the claims against the Trust.   In its opinion the Appellate Court noted that during the trial the plaintiff presented no evidence against the Trust.  Hall v. Bergman, supra, 106 Conn.App. 663 n.4.

On February 4, 2011, the defendant, Stuart Cohn, filed a motion to dismiss (# 286) any claim directed at the Trust on “the grounds that there exists a lack of subject matter jurisdiction as said party is not a legal entity that can be sued and therefore precludes said plaintiff from invoking this Honorable Court's jurisdiction as to said party.”   The plaintiff, L. Hall, filed a pleading entitled “Reply to Defendants' motion to Dismiss for Lack of Jurisdiction” (# 306) on September 16, 2011, in which she argues that “the Trust functioned as a landlord receiving all payments into its designated accounts and making decisions through its designated agents thus rendering it a legal entity, i.e., a body other than a natural person, able to sue and be sued.”

Oral argument was held on September 19, 2011 at which time the defendant was heard.   The plaintiff did not appear at the hearing.²

II

FACTS

The plaintiff alleges that in May 1995, Rhoda Cohn approached the plaintiff and informed her that Stuart Cohn, her son, and his wife were divorcing and vacating the condominium.   Because the condominium had been constructed to accommodate a person with physical impairments, the plaintiff alleged that Rhoda Cohn thought that the condominium would be suitable for the plaintiff, who suffered from a physical disability.   Hall alleged that in August 1995, she entered into a long-term lease agreement for the condominium with Stuart Cohn, who was acting as agent for the Trust.

Approximately two years later, Rhoda Cohn, acting as trustee, decided to sell the condominium and engaged Stuart Cohn to approach the plaintiff with an offer to purchase the condominium.   According to the plaintiff's allegations, when she refused to purchase the condominium, Rhoda Cohn instituted a summary process against her, which was dismissed.   Thereafter, Stuart Cohn commenced a second summary process action to evict the plaintiff from the condominium.   The plaintiff alleged, among other things, that Stuart Cohn threatened her, violated court orders with respect to her, sexually assaulted her, sabotaged assistive technology devices, misappropriated her personal and professional identity, and in the summer of 1997 permitted a family of a different race to live in the condominium to compel the plaintiff to purchase the premises.   The plaintiff also alleged that the defendants had been unjustly enriched because she had made certain improvements to the condominium.

III

STATEMENT OF LAW

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact states a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

As a preliminary matter, the court notes that a motion to dismiss for lack of subject matter jurisdiction may be raised at any time and must be resolved prior to ruling on any other motions pending before the court.  Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995);  see Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946) ( “if the question whether there is a lack of jurisdiction of the subject matter of an action comes to the attention of the court, it can proceed no further until the matter is determined”).  “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.”  Ajadi v. Commissioner of Corrections, 280 Conn. 514, 533, 911 A.2d 712 (2006).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC. v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

“In Randolph Foundation v. Appeal from Probate Court, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No. X05 CV98 0167903 (April 3, 2001, Tierney, J.) the court needed to decide whether a trust is a legal entity that has the authority to sue and be sued in Connecticut.   The court found, citing Lafayette Bank and Trust Co. v. Branchini and Sons Construction Co., 32 Conn.Sup. 124, 342 A.2d 916 (1975), that absent a statute to the contrary, a [common-law] trust cannot sue or be sued in Connecticut ․ Where such trusts have no standing to sue or be sued in their own names, suits must normally be brought by or against the trustees.”  (Internal quotation marks omitted.)   Booker v. Cappozziello, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV05 4010211 S (July 21, 2006, Gilardi, J.) [41 Conn. L. Rptr. 693]

“A number of treatises have discussed the fact that a trust is not an entity.   The leading treatise characterizes a trust as a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.   As against a person acting adversely to the trustee, it is the trustee who is the proper party to maintain an action at law or a suit in equity ․ As a general rule, the trustee is the proper person to sue or be sued on behalf of a trust.   A trustee is a necessary party to assert or defend title to a trust property ․ Because an ordinary express trust is not an entity separate from its trustees, an action may not be maintained in the name of the trust.”   (Citations omitted, internal quotation marks omitted.)   Randolph Foundation v. Appeal from Probate Court, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No. X05 CV98 0167903 (April 3, 2001, Tierney, J.)

IV

DISCUSSION

The defendant, Stuart Cohn, now, some eleven years after the commencement of the suit, moves for dismissal of all claims against the Trust because this court lacks subject matter jurisdiction over the Trust as it is not a legal entity.   Our case law allows subject matter jurisdiction to be raised at any time and once raised it must be resolved by the court before it can proceed with any other motions pending before the court.

Upon the raising of subject matter jurisdiction, the burden of proof shifts to the plaintiff and every presumption favoring jurisdiction should be indulged.   In this case the plaintiff, proceeding pro se, has offered no legal basis for the court to exercise jurisdiction.   The case law is clear that a trust is not a legal entity and is incapable of being sued.   The trustee is the necessary party that must be sued on behalf of a trust unless the trust is a statutory trust under C.G.S. § 34–502(a).   That statute states that “[a] statutory trust is hereby declared to be a permitted form of association for the conduct of business in this state.”   Moreover, C.G.S. § 34–502b states that “[a] statutory trust shall have the power to sue and be sued in its own name.”   However, there has been no evidence or allegation that the Trust here is a statutory trust.   In the present case, the two trustees were named as defendants.   The claims against one trustee, Stanley Bergman, were withdrawn on May 13, 2004 (# 228), before trial commenced.   The remaining trustee, Rhoda Cohn, received a verdict in her favor after a jury trial and that verdict was upheld on appeal.

V

CONCLUSION

The claims against the trustees, the proper parties to be sued, have been disposed of by withdrawal or judgment.   The claims remaining against the Trust have not been disposed of.   Given that the Trust is not a legal entity that can be sued, the court lacks subject matter jurisdiction over any claims directed at it.

The motion to dismiss is granted.

BY THE COURT

Shaban, J.

FOOTNOTES

FN1. The jury was given only four verdict forms;  a plaintiff's and a defendant's verdict form as to Stuart Cohn and a plaintiff's and a defendant's verdict form as to Rhoda Cohn. There were no verdict forms as to the Trust..  FN1. The jury was given only four verdict forms;  a plaintiff's and a defendant's verdict form as to Stuart Cohn and a plaintiff's and a defendant's verdict form as to Rhoda Cohn. There were no verdict forms as to the Trust.

FN2. The plaintiff had informed the court that she was unable to attend the hearing due to an ongoing medical condition, but did not provide the court with any up to date verification or description of the condition sufficient to warrant or justify a continuance of the matter..  FN2. The plaintiff had informed the court that she was unable to attend the hearing due to an ongoing medical condition, but did not provide the court with any up to date verification or description of the condition sufficient to warrant or justify a continuance of the matter.

Shaban, Dan, J.