Cornerstone Christian Center, Inc. v. Timothy B. Yolen et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 114)

FACTS

On January 21, 2011, the plaintiff, Cornerstone Christian Center, Inc., filed a one-count complaint for negligence against both Attorney Timothy Yolen and Yolen & Perzin, LLC. The plaintiff alleges in its complaint that from November 2007, until April 2009, Yolen, while acting within the scope of his employment with Yolen & Perzin, LLC, provided advice and counseling to the plaintiff regarding the purchase of a property located at 701 North Street, Milford (the property).   The plaintiff further alleges that Yolen discovered or should have discovered the property was zoned residential, making the plaintiff's plan to build a church on the property impossible, but still advised it to sign a purchase agreement on January 22, 2008.   The plaintiff alleges it has sustained monetary losses and has been forced to remain in an inadequate facility, resulting in further loss and damage.   On June 6, 2011, Attorney Yolen and Yolen and Perzin, LLC filed an apportionment complaint pursuant to General Statutes § 52–102b against Attorney Karen Haley and Khaley & Associates, LLC.¹ The one-count apportionment complaint incorporates the plaintiff's complaint and further alleges that the apportionment defendants were retained from December 2007, to July 2008, by the plaintiff to assist in the closing of the property.   Part of that retainment was to do a title search, and any losses to the plaintiff were caused by the apportionment defendants' negligent conduct.

On July 7, 2011, the apportionment defendants filed a motion to dismiss the apportionment complaint on the ground that the plaintiff's complaint does not fall under § 52–102b(a) and therefore may not be apportioned.   The apportionment defendants also filed a memorandum of law in support of the motion.   On July 15, 2011, the apportionment plaintiffs filed an objection to the motion to dismiss, and a memorandum of law in support of the objection.   The apportionment defendants subsequently filed a reply on August 26, 2011.

DISCUSSION

“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[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]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 ․ It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Citation omitted;  internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213–14, 982 A.2d 1053 (2009).  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

The first issue is whether the court lacks subject matter jurisdiction because the plaintiff's complaint alleges legal malpractice.   The apportionment defendants argue that apportionment is not permitted in legal malpractice claims pursuant to Carpenter v. Law Offices of Dressler & Associates, LLC, 85 Conn.App. 655, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004).   The apportionment plaintiffs counter that the apportionment defendants' reliance on Carpenter is misplaced, as the statement was merely dicta and the rationale of that case is inapplicable to the present situation.

In Carpenter, the Appellate Court noted that “[t]he court concluded that the plaintiff's legal malpractice claim did not fall into the categories of civil actions for which General Statutes § 52–102b(a) permits apportionment” and further clarified in a footnote that “[u]nder General Statutes § 52–102b(a), a defendant may seek apportionment in any civil action to which General Statutes § 52–572h applies, namely, claims alleging damages resulting from personal injury, wrongful death or damage to property, none of which includes the legal malpractice at issue here.”  (Emphasis added.)   Carpenter v. Law Offices of Dressler & Associates, LLC, supra, 85 Conn.App. 657, 657 n.1. The Appellate Court's review was limited, however, to the trial court's decision to strike the plaintiff's amended complaint which added a direct claim against the apportionment defendants and was not a review of the trial court's separate decision to strike the apportionment complaint.   Whether the court meant apportionment never applies to legal malpractice claims is unclear from the court's limited dicta.   What is clear is that the claim must be one in which § 52–572h applies.

The second issue is whether the court lacks subject matter jurisdiction because the plaintiff's complaint does not allege damages for personal injury, wrongful death or damage to property as required by § 52–572h(b).  The apportionment defendants argue that the plaintiff has merely alleged monetary commercial losses.   In response, the apportionment plaintiffs counter that damage to property includes loss of use.   Thus, the apportionment plaintiffs further argue that since the plaintiff has alleged it was prevented from using the property for its intended commercial purpose, the complaint does include the type of damages required by § 52–572h.

Section 52–102b(a) provides, in relevant part:  “A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability ․” Whether the court has subject matter jurisdiction over an action served pursuant to § 52–102b(a) is therefore dependent upon whether § 52–572h applies to the action being apportioned.   See Carpenter v. Law Offices of Dressler & Associates, LLC, supra, 85 Conn.App. 660.  Section 52–572h(b) provides, in relevant part:  “In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages resulting from personal injury, wrongful death or damage to property ․” The Supreme Court had determined that “the legislature intended the phrase ‘damage to property’ to encompass only its usual and traditional meaning in the law of negligence actions, namely, damage to or the loss of use of tangible property, as opposed to damages for personal injury ․ In light of this legislative language and history ․ the term ‘damage to property,’ as used in § 52–572h, does not include purely commercial losses.”  (Citations omitted.)  Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 583–84, 657 A.2d 212 (1995).   “Thus, [if] the plaintiff claims only economic loss and not physical damage to or loss of use of property, § 52–572h does not apply to the plaintiff's claims.”   Whitaker v. Erdos & Maddox, Superior Court, judicial district of Fairfield, Docket No. CV 00 0371896 (November 14, 2000, Skolnick, J.).

“Loss of use must mean in the statutory context, as interpreted by the court, a negligent act prevented the use of the property for the commercial purposes for which it was intended, resulting therefore in commercial loss.”   Worcester v. Salzillo, Superior Court, judicial district of New Haven, Docket No. CV 08 5019588 (May 29, 2009, Corradino, J.) (47 Conn. L. Rptr. 893, 894).   In RMM Consulting, LLC v. McDermott, Superior Court, judicial district of Litchfield, Docket No. CV 06 5000976 (October 30, 2007, Gallagher, J.) (44 Conn. L. Rptr. 404, 406), the court found that “the lost opportunity or inability to market a property for sale due to a pending quiet title action” was sufficient to allege loss of use damages.   In addition, in Baldino & Izzi Custom Homes v. Berkshire Engineering & Surveying, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001045 (February 16, 2007, Gallagher, J.) (42 Conn. L. Rptr. 782), an allegation that an inability to construct a house on a property because of an easement which had not been shown on a map was sufficient to allege loss of use damages.   Conversely, in New Canaan v. Brooks Laboratories, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 05 4006797 (August 18, 2006, Lewis, J.) (41 Conn. L. Rptr. 861, 863), the apportionment complaint was dismissed for failure to state loss of use damages based on allegations that the town has “suffered and will continue to suffer severe financial harm and detriment in that it has expended, and will continue to be forced to expend, substantial sums of money to properly perform asbestos abatement activities and to incur costs ․”

The plaintiff's complaint alleges numerous monetary losses and further asserts that it “was forced to remain years in the inadequate facility” which it “attempted to mitigate by paying rent for other facilities, all to [the plaintiff's] further loss and damage.”   Finally, the plaintiff asserts it had to house employees at different locations, again to “further loss and damage.”   The plaintiff never alleges, however, that it closed on the property;  it alleges only that it signed a January 22, 2008 purchase agreement and lost an earnest deposit.   No case law has been found in which loss of use damages existed when a party ultimately did not own the relevant property.   Loss of use damages have only existed when a party has closed on a property only to learn that the party cannot use the property for its intended purposes.   Therefore the plaintiff has failed to allege damage to property as required by § 52–572h(b), and, as a result, the court does not have subject matter jurisdiction of the apportionment complaint.

CONCLUSION

Accordingly, the court grants the motion to dismiss the apportionment complaint for lack of subject matter jurisdiction.

Woods, J.

FOOTNOTES

FN1. Yolen and Yolen and Perzin, LLC will hereinafter be referred to collectively as “the apportionment plaintiffs.”   Haley and Haley & Associates, LLC will hereinafter be referred to collectively as “the apportionment defendants.”.  FN1. Yolen and Yolen and Perzin, LLC will hereinafter be referred to collectively as “the apportionment plaintiffs.”   Haley and Haley & Associates, LLC will hereinafter be referred to collectively as “the apportionment defendants.”

Woods, Glenn A., J.