373 NOBLE AVENUE TRUST v. ROBERT LEONARD ET AL.

2006 Ct. Sup. 13092
No. CV05 400 73 90 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
July 18, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
DALE W. RADCLIFFE, JUDGE.

FACTS
The plaintiff, identified as “373 Noble Avenue Trust,” brings this action in three counts, against four named defendants.

The Trust claims to be the landlord of property known as 798 North Avenue, Bridgeport. It does not claim to be the owner of the property nor does it bring this action in a representative capacity, on behalf of the owner.

In its complaint dated March 30, 2006, 373 Noble Avenue Trust claims that two of the defendants, Robert Leonard and Teresa Leonard, a/k/a Teresa Scates, occupied a first floor apartment, unit #5, while the remaining defendants, Robert White and Natasha Eschevarria were tenants who occupied Unit #12, on the second floor.

In Count One the plaintiff seeks money damages, based upon claims of vandalism which it contends occurred while the defendants were tenants at the 798 North Avenue property.

It claims that the defendant, Robert White, placed glue in the coin slots of washers and dryers located on the premises, and that he placed glue in the lock to the door leading to the basement area.

The Trust also claims that the defendants removed lock cylinders from the front and rear doors, broke windows, and caused other damage, during their tenancys.

In Count Two, 373 Noble Avenue Trust claims that the defendants, through their actions and activities, interfered with contracts between the Trust and third parties. CT Page 13093

Count Three alleges that an individual, identified as the “Trustee” of the plaintiff, was subjected to threats and intimidation by the defendants, and that the police were called.

It is claimed that the defendants accused the plaintiff’s “trustee” of being a “trespasser,” and that a dangerous and disruptive atmosphere was created.

The person claimed to be the “Trustee” of the plaintiff, 373 Noble Avenue Trust, is not a party to the action, and is not identified in the complaint.

The owner of 798 North Avenue, one Jennifer L. Cappozziello, is not a party to this action. She is not identified in the complaint.

Documents and pleadings reveal that Jennifer L. Cappozziello took title to the premises via a warranty deed, recorded at Volume 5054, page 307-08 of the Bridgeport Land Records, on October 3, 2002.

The complaint does not indicate that the owner is a party to any leases with the individual defendants, or that she is a party to any written trust agreement with the plaintiff, 373 Noble Avenue Trust.

The complaint merely alleges that 373 Noble Avenue Trust is the “landlord.” There is no allegation concerning an ownership interest in the property, or any reference to a written trust instrument by which the “Trust” is authorized to act on behalf of the owner.

In affidavits, which are included in the pleadings, Thomas Cappozziello is identified as “. . . the Trustee of 373 Noble Avenue Trust, which trust is the landlord of 798 North Avenue, Bridgeport, Connecticut.”

Jennifer Cappozziello, in an affidavit, states that the Trust “. . . was the manager and landlord of the premises during all relevant times involving the defendants’ occupancy of the premises.”

Thomas Cappozziello, Sr. states, by way of affidavit, that the Trust is “. . . the duly authorized managing agent for the owner CT Page 13094 of the premises which includes renting units, collecting rents, communicating with occupants, maintaining the premises and conducts the daily activities and rental on behalf of the premises.”

Nowhere in the pleadings or the materials, however, is it indicated that the “Trust” was ever reduced to writing, or that any written management agreement exists between the Trust and the owner of the property.

Furthermore, there is no reference in the pleadings or the materials concerning the organizational form of the “Trust.” It is not identified as a corporation, a limited liability company (LLC) or a partnership.

Thomas Cappozziello states, “I am the trustee of 373 Noble Avenue Trust,” although he is not a party, either in his individual capacity, or in his capacity as trustee.

The complaint and pleadings are silent as to whether Thomas Cappozziello is the only “Trustee” of 373 Noble Avenue Trust, although his use of the words “the Trustee” rather than “a Trustee” would seem to indicate that he acts alone in the capacity as trustee.

The defendants have moved to dismiss the action, claiming that the entity in whose name the action is brought, 373 Nobel Avenue Trust, has no standing to pursue claims for property damage, to seek money damages concerning the property at 798 North Avenue, or to sue concerning the defendants’ actions while tenants at the premises.

The plaintiff maintains that it is the duly authorized agent of the owner of the property, and is able to maintain an action in that capacity. It further argues that Connecticut General Statutes § 47a-23[1] provides authorization for suit in the name of the legal representative of the owner.

STANDARD OF REVIEW
A motion to dismiss properly attacks the jurisdiction of the court by asserting that the plaintiff is unable, as a matter of law, and fact, to state a cause of action that can be heard in the particular forum. Baskin’s Appeal from Probate, 194 Conn. 635, 640 (1984); Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). CT Page 13095

The purpose of the motion is to test whether, on the face of the record, the court lacks either personal jurisdiction over the party, or subject matter jurisdiction. Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648 (1954).

Standing focuses on whether a party is the proper party to seek relief on a claim, and is jurisdictional in nature, Nyev. Marcus, 198 Conn. 138, 141 (1985). The basic elements of standing are injury in fact, causation, and redressability Nielsen v. State, 236 Conn. 1, 6-7 (1996).

Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. Elder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369 (2005); Gay and Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 435, 466 (1996).

NO PROVISION OF THE GENERAL STATUTES PROVIDES THE PLAINTIFF WITH STANDING
The plaintiff claims that the provisions of § 47a-23(a) of the General Statutes provide it with the necessary authority to commence and prosecute this action.

This argument is not well taken, based upon a clear reading of the statute.

Because § 47a-23(a) is contained in Connecticut’s summary process statutes, its provisions must be narrowly construed, and strictly followed. Vogel v. Bacus, 133 Conn. 95, 97 (1946) Cianciolo v. Plano, 23 Conn.Sup. 291, 292 (1962).

The provisions of the statute permit a representative of the owner or lessor of property to file a notice to quit possession, in an action in which recovery of possession is the objective.

Neither § 47a-23(a) or any other provision of the General Statutes permits the representative of the landlord or owner to bring an action, in its own name for money damages.

The plaintiff asks the court to provide authorization to sue by CT Page 13096 implication, when the General Assembly has refused to grant such power specifically. This request is not well taken.

Standing may be established by demonstrating that a party claiming to be aggrieved, is authorized by statute to bring suit Steeneck v. University of Bridgeport, 235 Conn. 572, 579
(1995).

Section 52-106 of the General Statutes, permits suit to be instituted in a representative capacity. The statute provides:

Any executor, administrator, or trustee of an express trust may sue or be sued without joining the persons represented by him and beneficially interested in the action.

This action is not brought in the name of Thomas Cappozziello as Trustee, but has been instituted in the name of the Trust itself.

No statute allows a suit to be commenced by an Estate, or by a Trustee, without the executor or trustee being listed as the party.

Here the person who claims, by way of affidavit, to be “the Trustee” of 373 Noble Avenue Trust, is not a party to the action.

Furthermore, the available record reveals no basis for finding that an “express trust” exists, which would sanction suit in the name of the Trustee, pursuant to § 52-106 of the General Statutes.

PLAINTIFF DOES NOT HAVE STANDING TO SUE AS AGENT OF OWNER OR TRUSTEE
The plaintiff further maintains that it has standing to prosecute this action in its own name, because it is the agent of the owner of the property.

This claim is unavailing.

A plaintiff, generally, does not have standing to sue a defendant in its own name, if it is merely an agent, and not an assignee. The rationale for this rule is that an agent can at best claim an indirect injury due to an alleged act or omission. CT Page 1309 McCulloch v. Hartford Life and Accident Insurance Company, 363 F.Sup.2d 169, 184-85 (2005).

The mere claim that a plaintiff has a fiduciary duty to another, analogous to that of a trustee, is insufficient to supply standing to sue in its own name. Second Exeter Corporation v. Epstein, 5 Conn.App. 427, 428 (1985).

Here, suit has not been brought in a representative capacity, and the plaintiff, 373 Noble Avenue Trust, is not the owner of the property.

Furthermore, it lacks any standing to claim damages for injuries allegedly sustained by its “Trustee,” assuming the acts alleged in Count Three concern Thomas Cappozziello, Sr.

The defendants’ Motion to Dismiss is therefore GRANTED.

[1] Section 47a-23, C.G.S. — “(a) when the owner or lessor, or the owner’s or lessor’s legal representative, or the owner or lessor’s attorney-at-law or in-fact, desires to obtain possession or occupancy of any land or building . . . such owner or lessor, or such owner’s or lessor’s legal representative, or such owner or lessor’s attorney-at-law or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit . . .”

CT Page 13098