A. AIUDI SONS v. NORMA TARCA, ADMINISTRATRIX ET AL.

2006 Ct. Sup. 1808
No. HHB CV 05 4008289 SConnecticut Superior Court Judicial District of New Britain at New Britain
January 24, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION TO DISMISS
ROBERT B. SHAPIRO, JUDGE.

On November 3, 2005, the plaintiff filed an application for a prejudgment remedy, seeking the imposition of a constructive trust by an attachment on property located in Plainville, Connecticut, which is now held in the name of the defendant Costos Jones (application). On January 9, 2006, this court heard argument concerning Jones’ motion to dismiss (#103). In his motion, Jones contends that the plaintiff has no standing or aggrievement and, therefore, no right to assert any claim against Jones as part of the prejudgment remedy proceeding, and that the claim against Jones should be dismissed.[1]

“The issue of standing implicates this court’s subject matter jurisdiction . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] 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 . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests . . .

Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern CT Page 1809 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.” (Citations omitted; internal quotation marks omitted.) Eder Brothers, Inc. v. Wine Merchants Of Connecticut, Inc., 275 Conn. 363, 368-70, 880 A.2d 138 (2005).

In his affidavit in support of the application, Elmo R. Aiudi states that, in 1993, he and John W. Tarca (Tarca) entered into a written contract whereby Aiudi loaned Tarca $105,000.00. He avers that the monies were due and payable on receipt by Tarca of monies from Tarca’s share of the proceeds from the sale of property located on Camp Street in Plainville, that was and still is in the name of Jones. He claims that he loaned the money to Tarca and the sum is now justly due. He also states that Tarca used the proceeds to purchase the property with Jones and that Tarca’s estate lists a one-sixth (1/6) interest in the property as an asset.

In count two of the unsigned complaint accompanying the application, the plaintiff bases his claim against Jones on unjust enrichment and, in the prayer for relief, seeks the imposition of a constructive trust. In his memorandum, p. 3, Jones argues that the plaintiff has not set forth a cause of action against him. Jones also argues, in his memorandum, pp. 6-7, that the law concerning constructive trust is not applicable in these circumstances, asserting that the plaintiff has overlooked the essential elements of such a claim.

These arguments may be the bases for denying an application for a prejudgment remedy after hearing. A plaintiff’s application for a prejudgment remedy depends on the “action” set forth in the attached writ, summons and complaint. Cahaly v. Benistar Property Exchange Trust Co., Inc., 268 Conn. 264, 273, 842 A.2d 1113 (2004). “No provision is made in [General Statute §52-278d(a)] for a motion to strike the proposed unsigned complaint. This is logical because the proposed unsigned complaint is not yet `in court’ until the court, pursuant to 52-278d(a), grants the application and until, pursuant to subsection b, proper service of the writ, summons and complaint is made.” (Footnotes omitted.) William Beazley Co. v. Business CT Page 1810 Park Associates, Inc., 34 Conn.App. 801, 804, 643 A.2d 1298
(1994).

As our Supreme Court has written, quoting then-Judge Cardozo, “[a] constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” (Internal quotation marks omitted.)Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980). A claim for the imposition of a constructive trust may be made where a party is wrongfully withholding from another his share of property. See Wendell Corporation Trustee v. Thurston, 239 Conn. 109, 113-14, 680 A.2d 1314 (1996).

As stated above, to show standing, all that the plaintiff must demonstrate is that there is a “possibility” that some legally protected interest has been adversely affected. Eder Brothers, Inc. v. Wine Merchants Of Connecticut, Inc., supra, 275 Conn. 370. At this very preliminary stage, the plaintiff has alleged enough to show the “possibility” that this is so. Accordingly, there has been a sufficient showing of standing in order to proceed. Whether or not the plaintiff can present even the minimal level of proof to establish the probable cause sufficient to warrant a prejudgment remedy remains to be seen. Se Alternative Transportation Logistics, Inc. v. Michael Lokko, DBA, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 05 4010326 S (June 3, 2005, Beach, J.).

CONCLUSION
For the foregoing reasons, the motion to dismiss is denied.

It is so ordered.

[1] At oral argument, counsel for defendant Norma Tarca, administratrix of the estate of John W. Tarca, stated that she joined in the motion.

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