Ronald F. Bozelko v. Michael Milici (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

BACKGROUND:

On August 9, 2011, the plaintiff, Ronald Bozelko, commenced this petition for new trial pursuant to General Statutes § 52–270.   The defendant, Michael Milici, moves to dismiss on the ground that the court lacks subject matter jurisdiction because the plaintiff lacks standing to bring this petition.   Due to the nature of this action, it is necessary to recite the relevant history of litigation between the parties.¹

On November 30, 2006, the plaintiff commenced an action in the judicial district of New Haven originally entitled Bozelko v. D'Albero, Superior Court, No. CV 06 5009158.   On November 20, 2007, Attorney Howard Gemeiner filed an appearance on behalf of the plaintiff.   On June 20, 2008, the plaintiff filed a second revised complaint alleging various causes of action against the defendant and others arising from an alleged agreement to purchase tax liens from East Haven.   On July 1, 2008, the defendant filed a motion for summary judgment and memorandum of law in support.   On August 18, 2008, the plaintiff filed an objection and memorandum of law in opposition.   On August 25, 2008, the defendant's motion for summary judgment was granted “absent objection or opposition” by the Superior Court, Lager, J.

On April 13, 2009, the plaintiff assigned his interest in the action to Edward Jacobs.   The relevant portion of the assignment agreement provides:  “I, Ronald D. Bozelko ․ in consideration of $1.00 and other valuable consideration, the receipt of which is hereby acknowledged, paid to me by Edward Jacobs, Executor of the Estate of Antonina Cap ․ assign to [Mr. Jacobs] all of my right, title and interest in certain causes of action and claims, asserted or not asserted, which causes of action are now in suit and are pending in the Superior Court at New Haven, specifically Bozelko v. D'Albero, Superior Court at New Haven CV06–5009158 ․” On June 29, 2009, Mr. Jacobs was substituted as the plaintiff in that case.²

Almost three years after the motion for summary judgment was granted, this petition for new trial was commenced.³  The plaintiff alleges that he is entitled to a new trial because:  (1) he never received notice of the order granting summary judgment;  and (2) there is reasonable cause to grant a new trial as the matter was not adjudicated on the merits.   On September 23, 2011, the defendant filed a motion to dismiss and a memorandum in support.   The defendant moves to dismiss on the ground that the court lacks subject matter jurisdiction because the plaintiff lacks standing to bring this petition.   On October 5, 2011, the plaintiff filed an objection to the motion to dismiss and a memorandum in opposition.   The plaintiff objects on the ground that he does have standing to file the instant petition.   This matter was heard on short calendar on October 11, 2011.

There are two issues presented.   The first issue is whether the court should grant the defendant's motion to dismiss on the ground that the court lacks subject matter jurisdiction.   Specifically, the defendant argues that the plaintiff does not have standing to bring this petition for new trial.   The second issue presented is whether the court should grant the plaintiff's petition for new trial.

LEGAL STANDARD OF REVIEW:

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

ANALYSIS:

I. Standing

The defendant moves to dismiss the plaintiff's petition for new trial on the ground that the court lacks subject matter jurisdiction.   Specifically, the defendant argues that the plaintiff lacks standing because he assigned his rights in the underlying action to Mr. Jacobs.   The plaintiff does not dispute that he assigned his rights to Mr. Jacobs on April 13, 2009.   Rather, the plaintiff contends that he is the proper party to petition for a new trial because he was still the plaintiff on August 25, 2008, the date when summary judgment was entered.

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss ․ [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.”  (Citation omitted;  internal quotation marks omitted.)  Wilcox v. Webster Ins. Co., 294 Conn. 206, 213–14, 982 A.2d 1053 (2009).   Moreover, “[s]tanding is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.”  (Internal quotation marks omitted.)   Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The fundamental test for determining aggrievement encompasses a well-settled twofold determination:  First, the party claiming the aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Carrubba v. Moskowitz, 274 Conn. 533, 551, 877 A.2d 773 (2005).

Whether the plaintiff has satisfied the requirements of the twofold analysis turns on the impact of the assignment agreement executed by the plaintiff and Mr. Jacobs.  “In Connecticut, it is well established in the common law that an assignee stands in the shoes of the assignor.”  National Loan Investors Ltd. Partnership v. Heritage Square Associates, 54 Conn.App. 67, 73, 733 A.2d 876 (1999).   Moreover. “[a] valid assignment transfers to the assignee exclusive ownership of all of the assignor's rights to the subject assigned and extinguishes all of those rights in the assignor.”  Mall v. LaBow, 33 Conn.App. 359, 362, 635 A.2d 871 (1993).

The superior courts have opined that a plaintiff no longer has standing after it assigns its interest in a case to a third party.   For instance, in Communications Systems, Inc. v. Farmington Four Partners, Superior Court, judicial district of Hartford, Docket No. CV 90 0383972 (March 16, 1998, Rittenband, J.) (21 Conn. L. Rptr. 465), the plaintiff had previously assigned its “right, title and interest” in several judgments of strict foreclosures to PBC Partners, L.P. Id. When it became clear that the plaintiff was no longer the owner of the underlying judgments, the superior court dismissed the case for lack of subject matter jurisdiction.  Id. The plaintiff filed a motion to reargue and set aside judgment of dismissal.   Id. In the subsequent proceeding, the court found that the plaintiff had divested itself of its interest in the underlying judgments and, as a result, lacked standing to file the motion.  Id., 466.

In the present case, the assignment agreement executed by the parties provides that the plaintiff has assigned his “right, title and interest” in the underlying action to Mr. Jacobs.   Pursuant to the agreement, the plaintiff no longer has a specific, personal, and legal interest in this matter.   Mr. Jacobs, as the assignee, has stepped into the shoes of the plaintiff.   Moreover, Mr. Jacobs was substituted as the plaintiff in the underlying action.   Accordingly, the plaintiff lacks standing to bring this petition for new trial.

II. Petition for New Trial

The plaintiff alleges that he is entitled to a new trial because:  (1) he never received actual notice of the order granting summary judgment;  and (2) there is reasonable cause to grant a new trial as the matter was not adjudicated on the merits.   Although the court determines that the plaintiff lacks standing to bring this petition, it also determines that the plaintiff is not entitled to a new trial.

The procedure for procuring a new trial by petition is governed by § 52–270.⁴  “The proceeding is essentially equitable in nature;  the petitioner has the burden of alleging and proving facts which would, in conformity with our settled equitable construction of the statutes, entitle him to a new trial on the grounds claimed.”  (Internal quotation marks omitted.)  Fitzpatrick v. Hall–Brooke Foundation, Inc., 72 Conn.App. 692, 697, 807 A.2d 480, cert. denied, 262 Conn. 914, 811 A.2d 1291 (2002).  “[T]he petition is addressed to the legal discretion of the trial court.”  (Internal quotation marks omitted.)  Rizzo v. Pack, 15 Conn.App. 312, 315, 544 A.2d 252 (1988).

A. Want of Actual Notice

The plaintiff's first ground for a new trial under § 52–270 is “want of actual notice.”   Specifically, the plaintiff argued at short calendar and in his objection to the defendant's motion to dismiss that he did not receive notice of the summary judgment order because he was incarcerated and could not attend the hearing.   Nevertheless, a review of the procedural history of the underlying action indicates that the plaintiff did, in fact, have notice.   First, the plaintiff is the person who brought the underlying action.   Moreover, the plaintiff filed several documents with the court in anticipation of the summary judgment hearing, including:  (1) an objection to the defendant's motion for summary judgment;  (2) a memorandum in opposition;  and (3) a notice of intention to argue or present evidence at the hearing.   Most importantly, the plaintiff was represented by counsel, Attorney Gemeiner, who, to this day, remains counsel for the plaintiff (now Edward Jacobs, Executor) in that matter.   Accordingly, the plaintiff has failed to prove a “want of actual notice of the action.”

B. Other Reasonable Cause

The plaintiff's second ground for a new trial under § 52–270 is “other reasonable cause.”  “The basic test of reasonable cause is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal ․ A new trial may be granted to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud mistake or accident ․ Absent such special circumstances, [a] petition for a new trial does not furnish a substitute for, or an alternative to, an ordinary appeal ․ Under § 52–270 the exercise of due diligence is a condition precedent to a finding of reasonable cause.”   (Internal quotation marks omitted.)  Murphy v. Zoning Board of Appeals, 86 Conn.App. 147, 152–53, 860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005).

In the present case, the plaintiff has neither alleged nor proven that he exercised due diligence in not taking an appeal.   The plaintiff had an opportunity to appear at the hearing for summary judgment, either in person or by counsel, to present his argument.   Subsequently, he could have appealed the judgment within twenty days if he thought the judgment was in error.⁵  Instead, the plaintiff has ignored the judgment for almost three years.   “Absent special circumstances of fraud, mistake, or accident, unconnected with negligence or inattention on plaintiff's part, a new trial cannot provide a substitute for, or an alternative to an appeal.”   Presutti v. New Britain, Superior Court, judicial district of Hartford, Docket No. CV 98 0577534 (November 18, 1999, Teller, J.).   There is no reasonable cause asserted by the plaintiff upon which to grant a new trial.

ORDER:

The defendant's motion to dismiss (101.00) is granted.   The objection to same (106.00) is overruled.

Robert E. Young, Judge

FOOTNOTES

FN1. “The trial court has the power to take judicial notice of court files of other actions between the same parties.”  (Internal quotation marks omitted.)  Hryniewicz v. Wilson, 51 Conn.App. 440, 444, 722 A.2d 288 (1999)..  FN1. “The trial court has the power to take judicial notice of court files of other actions between the same parties.”  (Internal quotation marks omitted.)  Hryniewicz v. Wilson, 51 Conn.App. 440, 444, 722 A.2d 288 (1999).

FN2. Subsequently, the underlying case was renamed Jacobs v. D'Albero.   The defendant's attorney, in an affidavit attached to the defendant's motion to dismiss, asserts that the plaintiff improperly used monies from the Estate of Antonina Cap to purchase the tax liens that are at the center of these matters..  FN2. Subsequently, the underlying case was renamed Jacobs v. D'Albero.   The defendant's attorney, in an affidavit attached to the defendant's motion to dismiss, asserts that the plaintiff improperly used monies from the Estate of Antonina Cap to purchase the tax liens that are at the center of these matters.

FN3. In addition to filing this petition for new trial, the plaintiff also sought to intervene in Jacobs v. D'Albero, which is still ongoing.   On October 31, 2011, the Superior Court, Silbert, J., denied the motion to intervene..  FN3. In addition to filing this petition for new trial, the plaintiff also sought to intervene in Jacobs v. D'Albero, which is still ongoing.   On October 31, 2011, the Superior Court, Silbert, J., denied the motion to intervene.

FN4. “General Statutes § 52–270 provides in relevant part:  “Causes for which new trials may be granted. (a) The Superior Court may grant a new trial for any action that comes before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases ․.  FN4. “General Statutes § 52–270 provides in relevant part:  “Causes for which new trials may be granted. (a) The Superior Court may grant a new trial for any action that comes before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases ․

FN5. Practice Book § 63–1(a) provides in relevant part:  “Unless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given.”.  FN5. Practice Book § 63–1(a) provides in relevant part:  “Unless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given.”

Young, Robert E., J.