Hemlock Hill Camp Resort Cooperative Association, Inc. v. Jerry Hughes (2013)

RULING ON MOTIONS FOR DISMISSAL

The defendants in the above-captioned foreclosure actions have all moved for the dismissal of the actions pending against them, arguing that the court lacks subject matter jurisdiction.   All four defendants in all four cases make the same substantive arguments.   The plaintiff filed essentially the same opposition to each motion to dismiss.   The four motions to dismiss are denied.

I

FACTUAL AND PROCEDURAL HISTORY

The complaint filed in each of the four captioned cases alleges in relevant part that plaintiff Hemlock Hill Camp Resort Cooperative Association, Inc. (“the association”) is a common interest community known as the Hemlock Hill Camp Resort in Goshen, Connecticut.   The plaintiff alleges that it is a cooperative and that the defendants, Jerry Hughes, Mary Hughes, Scott Hughes and Melissa Schneider, each acquired title to a unit of the association.¹  The complaints allege that each defendant failed to pay common expenses,² as required by the Declaration of Hemlock Hill Camp Resort dated December 8, 1989, and recorded on the Goshen land records on that same date.   The plaintiff seeks, inter alia, a foreclosure of its condominium common charge lien and a judgment of strict foreclosure.

On January 18, 2013, each defendant filed a motion to dismiss, to which the plaintiff objected.   The motions to dismiss were heard on April 15, 2013.   In the course of that hearing, an issue arose regarding the distinction between claims implicating the court's subject matter jurisdiction and claims implicating the proper exercise of the court's authority.   The parties were invited to submit supplemental memoranda on this issue.   The final memoranda were submitted on April 22, 2013.

II

PARTIES' ARGUMENTS

The defendants first contend that the court lacks subject matter jurisdiction because they were current on all installments of common charges lawfully assessed through 2011.   Second, they claim that the plaintiff never made a demand for payment “for any specific amount lawfully claimed to be due for common charges lawfully assesses [sic] ․” Third, they argue that the plaintiff's executive board did not vote to commence the foreclosure actions nor had it adopted a standard policy that provided for foreclosure against the defendants' units at the time of the commencement of the action.   The foregoing facts, they claim, preclude a foreclosure action pursuant to General Statutes § 47–258(m).³

The plaintiff objects to the motions to dismiss, arguing that the motions are improper because General Statutes § 47–258(m) does not create elements that must be pled in a foreclosure action, but rather “creates collection requirements that may be addressed” in a special defense.⁴  The plaintiff also argues that the defendants' claim of payment of common charges does not support a motion to dismiss, but should be pled as a defense to the foreclosure action.   Finally, the plaintiff argues that it did make demands for payment and it did have a collection policy in place prior to the commencement of the foreclosure actions.   Attached to each of the plaintiff's objections is a copy of a collection policy, an April 3, 2012 letter demanding payment of common charges, and statement of charges owed to the plaintiff.

III

DISCUSSION

A motion to dismiss “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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).   When a motion to dismiss raises a jurisdictional question, and “the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

“[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ․ Subject matter jurisdiction involves 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 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, including on appeal.”  (Internal quotation marks omitted.)  Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc., 131 Conn.App. 567, 572, 27 A.3d 467 (2011), cert. granted, 303 Conn. 928, 36 A.3d 242 (2012).

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983).   Consequently, when considering a motion to dismiss, “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.)  State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).  “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.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).

“There is a significant difference between asserting that plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike.”  (Emphasis in original.)  Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004).  “The distinction between the motion to dismiss and the motion to strike is not merely semantic.   If a motion to dismiss is granted, the case is terminated, save for an appeal from that ruling ․ The granting of a motion to strike, however, ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings ․ That critical distinction implicates a fundamental policy consideration in this state.   Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court.”  (Citations omitted.)  Id., 249.  “[T]he failure to allege an essential fact under a particular statute goes to the legal sufficiency of the complaint, not to the subject matter jurisdiction of the trial court.”  In re Jose B., 303 Conn. 569, 579, 34 A.3d 975 (2012).

In the present case, the defendants are arguing that not only did the plaintiff fail to allege facts required by General Statutes § 47–258(m), but also that the plaintiff cannot establish the facts required by that statute.   In response, the plaintiff argues that the requirements of General Statutes § 47–258(m) need not be alleged in a foreclosure complaint, but even if such allegations were required, the factual bases for such allegations exist.

In their supplemental memorandum, the defendants acknowledged that “under the allegations of the complaint the court could grant a judgment of foreclosure.”   Defs.' Sup. Mem. 4. Consequently, the defendants agree with the plaintiff that the plaintiff need not allege that it has complied with the requirements of General Statutes § 47–258(m).  Instead, they argue that the plaintiff has not complied with those requirements.

Neither party cites to any authority, and the court cannot locate any, which addresses the issue of whether a foreclosure complaint, filed pursuant to Connecticut's Common Interest Ownership Act (“CIOA”), General Statutes § 47–200 et seq., must include a specific allegation that a condominium association has complied with the requirements of General Statutes § 47–258(m).⁵  However, this court does find some guidance in New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 717 A.2d 713 (1998).   In that case, our Supreme Court found that “[a] foreclosure complaint must contain certain allegations regarding the nature of the interest being foreclosed.   These should include allegations relating to the parties and terms of the operative instruments, the nature of the default giving rise to the right to foreclosure, the amount currently due and owing, the name of the record owner and of the party in possession, and appropriate prayers for relief ․ The terms of the mortgage determine the necessary elements of the plaintiff's prima facie case.”  (Citation omitted;  internal quotation marks omitted.)  Id., 610–11.   The court concluded that under the terms of the mortgage, the lender was required to give notice of acceleration, and that it was further required to establish, as a part of its prima facie case, that it gave such notice.   Id., 611–13.   In other words, the lender was required to allege that it had completed a procedure that, under the terms of the mortgage, was an essential step precedent to bringing an action in foreclosure.

The principles set forth in New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 594 are instructive with regard to the issue before this court.   The legislature enacted General Statutes § 47–258(m) in order to ensure that condominium associations are fully aware of foreclosures being pursued on their behalf, whether by management companies or by counsel.   D. Caron & G. Milne, Connecticut Foreclosures, An Attorney's Manual of Practice and Procedure (5th Ed.2011) § 13–1:9, p. 656–57.   It is readily apparent that the legislature fully expects that associations meet all three requirements of General Statutes § 47–258(m) prior to bringing an action in foreclosure.   “It is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions ․ Accordingly, care must be taken to effectuate all provisions of the statute ․ [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.”  (Citations omitted;  internal quotation marks omitted.)   Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 196, 708 A.2d 1371 (1998).

Therefore, just as notice of acceleration is an element of a prima facie case in a foreclosure action brought by a mortgagee, this court concludes that compliance with General Statutes § 47–258(m) must be an element of a prima facie case in a foreclosure action brought by a condominium association.   This court concludes that, just as a mortgagee must allege that it gave notice of acceleration of debt if the terms of the lending instrument require such notice, a condominium association must also allege that it complied with the requirements of General Statutes § 47–258(m) before bringing its foreclosure action.

In the present case, the complaints imply, but do not specifically allege, that the plaintiff has met the General Statutes § 47–258(m) conditions precedent to bringing these foreclosure actions.⁶  For example, the complaints make various references to other sections of CIOA and, in the prayers for relief, the plaintiff specifically seeks “foreclosure of its condominium charge lien pursuant to C.G.S. Section 47–258.”  (Emphasis added.)

In order for the parties to join issue on this question, the court orders the plaintiff to file an amended complaint in each of the four cases within fifteen days of this ruling.   Each amended complaint should specifically allege, provided there is a factual basis to do so, that the plaintiff has complied with the requirements of General Statutes § 47–258(m).  Practice Book § 10–1.⁷  If the plaintiff believes that it complied with the requirements of General Statutes § 47–258(m), and so alleges in the amended complaints, then the defendants will be free to admit, deny or allege insufficient information upon which to form a belief with regard to such allegations.   Thereafter, the question of whether the plaintiff did, in fact, meet the requirements of General Statutes § 47–258(m) can be brought before the court in the context of a motion for summary judgment or at a contested foreclosure hearing.⁸  If the plaintiff fails to file amended complaints that allege compliance with General Statutes § 47–258(m), the defendants are free to move to strike the complaints.   The motions to dismiss are denied.

So ordered.

John A. Danaher III

FOOTNOTES

FN1. The complaint in docket number CV 12 6006975 alleges that defendant Jerry Hughes holds title to unit F and acquired title on January 24, 2006.   The complaint in docket number CV 12 6006976 alleges that defendant Mary Hughes holds title to unit G and acquired title on January 24, 2006.   The complaint in docket number CV 12 6006977 alleges that defendant Scott Hughes holds title to unit D and acquired title through various instruments, all dated September 23, 2011.   The complaint in docket number CV 12 6006978 alleges that defendant Melissa Schneider holds title to unit C and acquired title through various instruments, all dated September 30, 2008..  FN1. The complaint in docket number CV 12 6006975 alleges that defendant Jerry Hughes holds title to unit F and acquired title on January 24, 2006.   The complaint in docket number CV 12 6006976 alleges that defendant Mary Hughes holds title to unit G and acquired title on January 24, 2006.   The complaint in docket number CV 12 6006977 alleges that defendant Scott Hughes holds title to unit D and acquired title through various instruments, all dated September 23, 2011.   The complaint in docket number CV 12 6006978 alleges that defendant Melissa Schneider holds title to unit C and acquired title through various instruments, all dated September 30, 2008.

FN2. The complaint in docket number CV 12 6006975 alleges that defendant Jerry Hughes owes $3,923.00 in common charges, late fees and other charges.   The complaint in docket number CV 12 6006976 alleges that defendant Mary Hughes owes an amount greater than two months worth of common charges, late fees and other charges.   The complaint in docket number CV 12 6006977 alleges that defendant Scott Hughes owes an amount greater than two months worth of common charges, late fees and other charges.   The complaint in docket number CV 12 6006978 alleges that defendant Melissa Schneider owes an amount greater than two months worth of common charges, late fees and other charges..  FN2. The complaint in docket number CV 12 6006975 alleges that defendant Jerry Hughes owes $3,923.00 in common charges, late fees and other charges.   The complaint in docket number CV 12 6006976 alleges that defendant Mary Hughes owes an amount greater than two months worth of common charges, late fees and other charges.   The complaint in docket number CV 12 6006977 alleges that defendant Scott Hughes owes an amount greater than two months worth of common charges, late fees and other charges.   The complaint in docket number CV 12 6006978 alleges that defendant Melissa Schneider owes an amount greater than two months worth of common charges, late fees and other charges.

FN3. General Statutes § 47–258(m) provides that “[a]n association may not commence an action to foreclose a lien on a unit under this section unless:  (1) The unit owner, at the time the action is commenced, owes a sum equal to at least two months of common expense assessments based on the periodic budget last adopted by the association pursuant to subsection (a) of section 47–257;  (2) the association has made a demand for payment in a record;  and (3) the executive board has either voted to commence a foreclosure action specifically against that unit or has adopted a standard policy that provides for foreclosure against that unit.”   The foregoing statute does not set forth a remedy in the event that an association fails to comply with its requirements.   Compare, e.g., General Statute § 52–190a(c) (in medical malpractice actions, the failure to file an opinion of a similar health care provider “shall be grounds for dismissal of the action”)..  FN3. General Statutes § 47–258(m) provides that “[a]n association may not commence an action to foreclose a lien on a unit under this section unless:  (1) The unit owner, at the time the action is commenced, owes a sum equal to at least two months of common expense assessments based on the periodic budget last adopted by the association pursuant to subsection (a) of section 47–257;  (2) the association has made a demand for payment in a record;  and (3) the executive board has either voted to commence a foreclosure action specifically against that unit or has adopted a standard policy that provides for foreclosure against that unit.”   The foregoing statute does not set forth a remedy in the event that an association fails to comply with its requirements.   Compare, e.g., General Statute § 52–190a(c) (in medical malpractice actions, the failure to file an opinion of a similar health care provider “shall be grounds for dismissal of the action”).

FN4. But see n.8, infra..  FN4. But see n.8, infra.

FN5. See, e.g., Practice Book § 10–69 (setting forth allegations that must be included in a foreclosure complaint)..  FN5. See, e.g., Practice Book § 10–69 (setting forth allegations that must be included in a foreclosure complaint).

FN6. The court recognizes that the plaintiff, in opposing the motions to dismiss, attached copies of a collection policy, demand letters, and copies of accounts that appear to show the indebtedness of the defendants.   However, the court also notes that the plaintiff did not produce an affidavit authenticating any of the foregoing documents, nor did it offer testimony by any witness.   Nonetheless, in view of the manner in which the court is deciding the motions to dismiss, the latter shortcomings need not be addressed at this time..  FN6. The court recognizes that the plaintiff, in opposing the motions to dismiss, attached copies of a collection policy, demand letters, and copies of accounts that appear to show the indebtedness of the defendants.   However, the court also notes that the plaintiff did not produce an affidavit authenticating any of the foregoing documents, nor did it offer testimony by any witness.   Nonetheless, in view of the manner in which the court is deciding the motions to dismiss, the latter shortcomings need not be addressed at this time.

FN7. “If any ․ pleading does not fully disclose the ground of claim ․ the judicial authority may order a fuller and more particular statement ․” Practice Book § 10–1..  FN7. “If any ․ pleading does not fully disclose the ground of claim ․ the judicial authority may order a fuller and more particular statement ․” Practice Book § 10–1.

FN8. Pursuant to the principles set forth in In re Jose B., supra, 303 Conn. 579, a motion to dismiss would not be the appropriate vehicle to challenge an allegation of compliance with General Statutes § 47–258(m).  This issue is analogous to medical malpractice actions in which the failure to attach a good faith certificate to a complaint alleging medical malpractice does not deprive the court of subject matter jurisdiction over medical malpractice actions.   See Morgan v. Hartford Hospital, 301 Conn. 388, 397–98, 21 A.3d 451 (2011).   See also The Neighborhood Assn., Inc. v. Limberger, Superior Court, judicial district of Tolland, Docket No. CV 11 6003545 (February 27, 2013, Sferrazza, J.) (55 Conn. L. Rptr. 592) (defendant not permitted to raise, as a special defense, plaintiff's alleged lack of compliance with General Statutes § 47–258(m))..  FN8. Pursuant to the principles set forth in In re Jose B., supra, 303 Conn. 579, a motion to dismiss would not be the appropriate vehicle to challenge an allegation of compliance with General Statutes § 47–258(m).  This issue is analogous to medical malpractice actions in which the failure to attach a good faith certificate to a complaint alleging medical malpractice does not deprive the court of subject matter jurisdiction over medical malpractice actions.   See Morgan v. Hartford Hospital, 301 Conn. 388, 397–98, 21 A.3d 451 (2011).   See also The Neighborhood Assn., Inc. v. Limberger, Superior Court, judicial district of Tolland, Docket No. CV 11 6003545 (February 27, 2013, Sferrazza, J.) (55 Conn. L. Rptr. 592) (defendant not permitted to raise, as a special defense, plaintiff's alleged lack of compliance with General Statutes § 47–258(m)).

Danaher, John A., J.