Maria G. Balaban v. Congregation Ahavath Achim, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 111)

On January 28, 2011, the plaintiff, Maria Balaban, filed a one-count complaint against the Congregation Ahavath Achim, Inc. and Paul Steer.¹  The plaintiff alleges the following facts in her complaint.   In August 1999, the defendant was created pursuant to a merger agreement between the Colchester Jewish Aid Congregation and the Congregation Ahavath Achim, Inc.

The plaintiff had been a member of the Colchester Jewish Aid Congregation prior to the merger and is now a member of the defendant's congregation.   On or about June 27, 2010, the plaintiff was elected to the defendant's board of directors and continues to hold that position.

Pursuant to the merger agreement, the defendant became the owner of the Colchester Jewish Congregation Cemetery (the Cemetery).   The merger agreement provided that the defendant “shall not allow anyone of the non-Jewish faith to be buried within the confines of Rows A through H of said cemetery ․” The plaintiff and her husband are members of the Jewish faith, have family buried at the Cemetery and have “cemetery privileges with plot reservations and the right of burial.”   On or about April 19, 2010, four members of the board of directors of the defendant allowed the remains of Julia Steer to be buried in the Cemetery.   Steer was not a member of the Jewish faith or a member of the defendant's congregation.   The plaintiff further alleges that Steer's burial in the Cemetery violated the merger agreement and has caused the plaintiff irreparable harm, for which she seeks declaratory and injunctive relief.

On July 22, 2011, the defendant filed a motion to dismiss, or, in the alternative, a motion for summary judgment, on the ground that the court lacks subject matter jurisdiction.

The defendant also filed a memorandum of law in support of the motion.   On August 23, 2011, the plaintiff filed an objection to the defendant's motion.   The plaintiff filed a second objection on August 25, 2011.

DISCUSSION

“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).   A trial court properly grants a motion to dismiss if it determines that the cause of action is “unripe for adjudication.”  Bloom v. Miklovich, 111 Conn.App. 323, 336, 958 A.2d 1283 (2008).  “[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.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213–14, 982 A.2d 1053 (2009).  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Id., 214.  “[I]f 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 ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

The defendant's motion requests relief through two procedural vehicles, a motion to dismiss and a motion for summary judgment.   The basis for both requests, however, is that the court lacks subject matter jurisdiction because (1) the plaintiff does not have standing and (2) the case is not ripe for adjudication.  “[A] motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”   Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).  “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 ․ 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).   This court will therefore treat the defendant's motion solely as a motion to dismiss.²  See Cadle Co. v. D'Addario, 268 Conn. 441, 445 n.5, 844 A.2d 836 (2004).

The plaintiff's second objection to the motion to dismiss correctly states that the rules of practice require a motion to dismiss to be filed within thirty days after the filing of an appearance.³  See Practice Book § 10–30.   However, “[t]he 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).   As the defendant has raised the issue of subject matter jurisdiction, this court must review the matter before the case can continue.

The defendant argues that the court lacks subject matter jurisdiction because the plaintiff lacks standing and the case is not ripe for adjudication.   Specifically, the defendant asserts that the plaintiff is alive, may never be buried in the Cemetery, is the only person to complain, and does not represent someone who is actually buried in a plot in the Cemetery.   In support of the motion, the defendant has submitted a sworn affidavit of Arthur Liverant, the defendant's chairman.   The plaintiff counters that the plaintiff purchased burial plots with the understanding that only members of the Jewish faith would be buried in the Cemetery.   She further asserts that the burial of a person who is not of the Jewish faith is a violation of her agreement with the defendant and, therefore, she has been aggrieved.   In support of her objection, the plaintiff has submitted her own sworn affidavit.⁴

“Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action ․ 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 [classical] aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.”  (Internal quotation marks omitted.)  Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).

“Generally, one receiving from a cemetery association a deed of a burial lot does not thereby take a title to the soil itself.   The rights of burial are so far public, that the private interests so acquired, to a limited use of particular lots for purposes of interment, are subject to the reasonable police regulations of the association having charge of the cemetery.   The association may be regarded as holding the fee in trust for the purposes for which the corporation was organized.”  State v. Scoville, 78 Conn. 90, 94, 61 A. 63 (1905).   In Norwalk Vault Co. of Bridgeport, Inc. v. Mountain Grove Cemetery Assn., 180 Conn. 680, 681–82, 433 A.2d 979 (1980), the plaintiffs alleged that the defendant was unlawfully selling double depth crypts in violation of its charter and the law.   Although the court did not specifically discuss the issue of standing, it did note that “the two private individual plaintiffs, as owners of lots in the defendant cemetery, clearly have standing to maintain these suits ․” Id., 682 n.1.

In the present action, the plaintiff alleges that she has plot reservations at the Cemetery.   Moreover, the plaintiff has submitted an affidavit in which she states that she purchased two plots at the Cemetery for herself and her husband in 1998, and five more plots for family members in 1999.   In addition, the affidavit of Liverant, submitted by the defendant, does not rebut the plaintiff's allegation that she has plot reservations at the Cemetery;  Liverant only states that he knows of twenty-four instances where individuals did not use their reserved plots when they died.   Whether the plaintiff will use the plot in the future does not affect her present legal interest in the plot.   The plaintiff has standing, therefore, to bring this action, as the owner of plots within the Cemetery.

Not only does the plaintiff have standing to bring the present case, but the case is ripe for adjudication.  “Ripeness is a justiciability doctrine, which implicates the court's subject matter jurisdiction.”  Bloom v. Miklovich, supra, 111 Conn.App. 336.  “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable ․ Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education, Inc. v. Rell, 295 Conn. 240, 254, 990 A.2d 206 (2010).  “In light of the rationale of the ripeness requirement, to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ․ [the court] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.”  (Citation omitted;  internal quotation marks omitted.)  Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003).

In the present case, the plaintiff's claim is ripe for adjudication.   An interest in burial plots is created by the purchase of the plots, not by burial in those plots.   In addition, the actual controversy between the plaintiff and the defendant is the burial of Steer, which has already occurred.   According to the plaintiff's allegations, the act of burying Steer in the Cemetery, and Steer's continued interment there, is a violation of the plaintiff's agreement with the defendant.   It is this violation which has caused injury to the plaintiff's interest in the plots.   The injury, therefore, is not hypothetical or contingent upon an event.   As the plaintiff has standing to bring the claim and there is a present injury which is ripe for adjudication, the defendant's motion to dismiss for lack of subject matter jurisdiction is denied.

CONCLUSION

For the foregoing reasons, the court hereby denies the defendant's motion.

Martin, J.

FOOTNOTES

FN1. The Congregation Ahavath Achim, Inc. will hereinafter be referred to as the defendant” as Steer has not filed an appearance in the present case..  FN1. The Congregation Ahavath Achim, Inc. will hereinafter be referred to as the defendant” as Steer has not filed an appearance in the present case.

FN2. Summary judgment is an appropriate procedure to challenge subject matter jurisdiction in two situations.  “[T]he use of the motion for summary judgment to contest subject matter jurisdiction is appropriate in two circumstances:  (1) when a party does not become aware of a jurisdictional defect until discovery has progressed;  or (2) if, after a court has denied a motion to dismiss on jurisdictional grounds, discovery produces additional evidence that supports dismissal of the action for lack of subject matter jurisdiction.”  (Internal quotation marks omitted.)   Bellman v. West Hartford, supra, 96 Conn.App. 393 n.4. Neither of these exceptions apply in the present action..  FN2. Summary judgment is an appropriate procedure to challenge subject matter jurisdiction in two situations.  “[T]he use of the motion for summary judgment to contest subject matter jurisdiction is appropriate in two circumstances:  (1) when a party does not become aware of a jurisdictional defect until discovery has progressed;  or (2) if, after a court has denied a motion to dismiss on jurisdictional grounds, discovery produces additional evidence that supports dismissal of the action for lack of subject matter jurisdiction.”  (Internal quotation marks omitted.)   Bellman v. West Hartford, supra, 96 Conn.App. 393 n.4. Neither of these exceptions apply in the present action.

FN3. The plaintiff filed a second objection to the defendant's motion two days after filing its original objection on the sole ground that the defendant's motion to dismiss was untimely because it was filed more than thirty days after the defendant's appearance..  FN3. The plaintiff filed a second objection to the defendant's motion two days after filing its original objection on the sole ground that the defendant's motion to dismiss was untimely because it was filed more than thirty days after the defendant's appearance.

FN4. The plaintiff has submitted other evidence including what appear to be pages from the constitution and bylaws of Colchester Synagogue, sections of the merger agreement, and sections of the constitution and bylaws of the defendant.   This evidence is unauthenticated and seem to be undated drafts.  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ․” (Internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).   Therefore the court will not consider this evidence..  FN4. The plaintiff has submitted other evidence including what appear to be pages from the constitution and bylaws of Colchester Synagogue, sections of the merger agreement, and sections of the constitution and bylaws of the defendant.   This evidence is unauthenticated and seem to be undated drafts.  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ․” (Internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).   Therefore the court will not consider this evidence.

Martin, Robert A., J.