Ion Bank v. J.C.C. Custom Homes, LLC , 189 Conn. App. 30 ( 2019 )

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ION BANK v. J.C.C. CUSTOM HOMES, LLC, ET AL.
(AC 40424)
DiPentima, C. J., and Prescott and Elgo, Js.
Syllabus
The plaintiff sought, by way of a replevin action, to recover certain collateral
in the possession of the named defendant that was the security for a
promissory note, which had been executed by the named defendant in
favor of the plaintiff and on which the named defendant had defaulted.
After the named defendant had defaulted on the note, the plaintiff
assigned all of its interest in the note to N Co. Thereafter, the plaintiff
commenced this action by filing a writ of replevin in which it expressly
identified itself as the party entitled to immediate possession of the
collateral. Within thirty days of filing the underlying replevin action, the
plaintiff filed an amended complaint, attached to which was an amended
prejudgment writ of replevin purporting to substitute N Co. as the plain-
tiff. The defendants subsequently filed a motion to dismiss the action,
which the trial court granted, concluding that because the plaintiff had
assigned the note to N Co. prior to commencing the replevin action, it
lacked standing to bring the action and that the court, therefore, lacked
subject matter jurisdiction over the matter ab initio. The trial court
also rejected the plaintiff’s claims that it had successfully effectuated
a substitution of N Co. as the plaintiff by filing its amended complaint,
and that as the assignor of the note to N Co., it had standing to maintain
the action on behalf of its assignee. From the judgment rendered thereon,
the plaintiff appealed to this court. Held:
1. The plaintiff could not prevail on its claim that the trial court improperly
granted the defendants’ motion to dismiss, which was based on its claim
that the court should have treated the amended complaint filed by the
plaintiff as having cured any defect regarding the plaintiff’s standing:
the plaintiff’s claim that it properly substituted N Co. as the plaintiff by
operation of law by filing an amended complaint in compliance with
the relevant rule of practice (§ 10-59) was unavailing, as although § 10-
59 allows a plaintiff to correct technical or circumstantial defects in a
pleading, or to add counts that could have been included in the original
complaint, § 10-59 does not confer a right to correct a jurisdictional
defect such as standing by allowing the substitution of a new party
plaintiff without judicial approval; moreover, the relevant rule of practice
(§ 9-20) and statute (§ 52-109) expressly vest discretion in the judicial
authority, and not the parties, to permit a substitution of a plaintiff if
the court determines that the action was commenced in the name of
the wrong party due to mistake and that it is necessary for the determina-
tion of the real matter in dispute to allow the substitution.
2. Contrary to the plaintiff’s claim, the trial court properly determined that
the plaintiff was required to file a motion for permission to substitute
N Co. as the party plaintiff and it did not abuse its discretion in declining
to treat the plaintiff’s amended complaint as such a motion: because the
determination of whether to permit the substitution of a party requires
an exercise of discretion and an order by the court, our rules of practice
required the plaintiff to file a motion accompanied by a memorandum
of law requesting that the court issue an order substituting N. Co. as the
plaintiff, which the plaintiff did not do; moreover, because the plaintiff’s
amended complaint neither included nor was accompanied by any
request for permission to substitute N Co., it was insufficient to alert
the court that the plaintiff was seeking an adjudication and order on
the issue of substitution and there was no motion before the court over
which it could have exercised its discretion to treat the amendment as
a motion to substitute, and the trial court did not consider or make any
finding as to whether the action was initiated by mistake, which was
essential for it to evoke its discretionary authority to allow a substitution
of N Co.
3. The plaintiff could not prevail on its claim that the trial court improperly
granted the defendants’ motion to dismiss because, as the assignor of
the note to N Co., it had standing to maintain the action on behalf of
its assignee: the plaintiff, having assigned the note to N Co., was neither
a holder of the note nor a nonholder in possession and, therefore, did
not have the authority to enforce the note at the time the action was
commenced pursuant to the relevant statute (§ 42a-3-301), and, to the
extent that prior case law suggested that an action commenced by an
assignor of a promissory note would not fail for lack of standing, this
court questioned its continued viability, as it was decided prior to the
enactment of § 42a-3-301, and the common law of assignments did not
displace the clear provisions of § 42a-3-301 because that statute was
directly applicable to the situation underlying the present case; more-
over, the plaintiff’s initial complaint could not reasonably be construed
as an action brought by N Co. in the name of the plaintiff, which had
alleged that it was the party entitled to immediate possession of the
collateral, and because the complaint was otherwise devoid of any
jurisdictional facts that would support a determination that the action
was brought by an assignee in the name of its assignor, the plaintiff
failed to meet its burden of alleging facts demonstrating that it was the
proper party to invoke judicial resolution of the dispute.
Argued December 6, 2018–officially released April 2, 2019
Procedural History
Action in replevin to recover certain chattel in the
defendants’ possession, and for other relief, brought to
the Superior Court in the judicial district of Waterbury,
where the court, Brazzel-Massaro, J., granted the
defendants’ motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this
court. Affirmed.
Christopher R. LaSaracina, for the appellant
(plaintiff).
John J. Ribas, for the appellees (defendants).
Opinion
PRESCOTT, J. In this replevin action, the plaintiff,
Ion Bank, appeals from the judgment of the trial court
granting a motion to dismiss filed by the defendants,
J.C.C. Custom Homes, LLC (J.C.C.), Rock On Excava-
tion Services, LLC (Rock On), John C. Ciappetta, and
Dawn E. Ciappetta. The court concluded that the plain-
tiff lacked standing to bring the action because, prior
to commencing it, the plaintiff had assigned its interest
in the underlying promissory note to Nutmeg Financial
Holdings, LLC (Nutmeg), and, therefore, the court
lacked subject matter jurisdiction.
The plaintiff concedes that the action was com-
menced in the name of the wrong party. Nevertheless,
the plaintiff claims on appeal that the court improperly
granted the motion to dismiss because it (1) failed to
consider an amended complaint that the plaintiff filed
pursuant to Practice Book § 10-59, which, the plaintiff
argues, substituted Nutmeg in as the proper plaintiff by
operation of law and, thus, cured any defect regarding
standing, (2) concluded that the plaintiff was required
to file a motion for permission to substitute in a new
plaintiff and failed to treat the amended complaint as
a motion to substitute, and (3) failed to conclude that
Nutmeg, as the assignee of the note, is entitled to main-
tain an action either in its own name or in the name of
its assignor, the plaintiff. We are not persuaded by the
plaintiff’s arguments and, accordingly, affirm the judg-
ment of the court.
The following facts, as set forth by the trial court in
its memorandum of decision or taken from the com-
plaint and viewed in the light most favorable to the
plaintiff, are relevant to our resolution of the present
appeal. J.C.C., through it owners, John C. Ciappetta and
Dawn E. Ciappetta, executed a commercial promissory
note in favor of the plaintiff on December 29, 2010, in
the principal amount of $170,000. J.C.C. agreed to repay
the loan along with interest and any applicable late
charges by January 1, 2016. J.C.C. also executed a com-
mercial security agreement in which it pledged a 2004
Ford F350 pickup truck as collateral for the loan. As
additional security for the note, Rock On, a limited
liability company also owned by the Ciappettas, exe-
cuted commercial security agreements providing as col-
lateral a 1981 Kenworth W900 truck, a 1989 East Dump
trailer, and a 1998 Caterpillar 416 backhoe. Rock On,
John C. Ciappetta, and Dawn E. Ciappetta also executed
guarantees assuming liability for repayment of the note.
J.C.C. failed to make the required monthly loan pay-
ments and defaulted on the note. Despite demands by
the plaintiff for repayment, the defendants did not repay
the loan or make the collateral available to the plaintiff.
On June 30, 2016, the plaintiff assigned all of its inter-
est in the note to Nutmeg.1 Despite the assignment,
the plaintiff, on July 1, 2016, initiated the underlying
replevin action against the defendants by service of
process.2 In addition to a prejudgment writ of replevin
expressly identifying the plaintiff as the party entitled
to immediate possession of the collateral, the process
included the requisite affidavit and bond. See General
Statutes § 52-518. The return date on the writ was
August 9, 2016.
On August 17, 2016, the plaintiff filed a pleading titled
‘‘Plaintiff’s Amended Complaint,’’ attached to which
was an amended prejudgment writ of replevin substitut-
ing Nutmeg as the named plaintiff. The amended com-
plaint stated in relevant part: ‘‘Pursuant to Practice
Book §§ 9-163 and 10-59,4 the plaintiff hereby amends
its complaint as of right to amend, among other things,
the named plaintiff. The proper plaintiff, [Nutmeg], has
acquired the right to collect the debt due, as evidenced
by the allonge to the promissory note as alleged in the
complaint. Said note is secured by, among other things,
the guarantees and security agreements as described
in the complaint, and said guarantees and security
agreements have been assigned to [Nutmeg] as well.
Accordingly, [Nutmeg] is now the proper plaintiff and
should be substituted as the sole plaintiff in this action.’’
(Footnotes added.)
On October 14, 2016, the defendants filed a motion
to dismiss the action for lack of subject matter jurisdic-
tion. According to the defendants, because the plaintiff
assigned the note to Nutmeg prior to commencing the
replevin action, it lacked a legal interest in the items it
sought to replevy and, thus, lacked standing to com-
mence or maintain the action. The defendants further
argued that the plaintiff’s attempt to substitute in Nut-
meg as the real plaintiff in interest by filing an amended
complaint was improper and did not ‘‘accomplish the
desired substitution.’’5
The plaintiff filed an objection to the motion to dis-
miss. The plaintiff argued with respect to the issue of
standing that (1) Nutmeg was substituted in as the real
plaintiff in interest by virtue of the amended complaint
it filed pursuant to Practice Book § 10-59, (2) even if it
was not entitled to substitute in Nutmeg as a matter of
right, the court should treat the amended complaint as
a motion to substitute pursuant to General Statutes
§ 52-109, and (3) it was entitled to maintain the action
in its own name despite the assignment of the note
to Nutmeg.
The court, Brazzel-Massaro, J., heard argument on
the motion to dismiss on December 5, 2016. On March
20, 2017, the court rendered a decision granting the
motion to dismiss, concluding that, because the plaintiff
lacked standing at the time it commenced the replevin
action, the court lacked subject matter jurisdiction over
the matter ab initio. The court rejected the plaintiff’s
argument that, as the assignor of the note to Nutmeg,
it had standing to maintain the action on behalf of its
assignee. The court reasoned that, in the present case,
the plaintiff ‘‘[had given] up all of its rights, title, and
interest in the note to Nutmeg on June 30, 2016, and
did not have standing to commence suit itself.’’ The
court further rejected the plaintiff’s argument that it
had effectuated a substitution of Nutmeg as the plaintiff
by virtue of its amended complaint. The court held that,
pursuant to § 52-109, substitution of a plaintiff could
only be effectuated if the court determined pursuant
to a motion for substitution that the action had been
‘‘commenced in the name of the wrong plaintiff through
mistake.’’ (Internal quotation marks omitted.) The plain-
tiff, however, had never filed a proper motion with the
court. The plaintiff filed a timely motion to reargue the
court’s granting of the motion to dismiss, which the
court subsequently denied. This appeal followed.
We begin with general principles of law, including
our standard of review. ‘‘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 contro-
versy. . . . [If] a party is found to lack standing, the
court is consequently without subject matter jurisdic-
tion to determine the cause.’’ (Citation omitted; internal
quotation marks omitted.) J.E. Robert Co. v. Signature
Properties, LLC, 309 Conn. 307, 318, 71 A.3d 492 (2013).
‘‘[B]ecause the issue of standing implicates subject
matter jurisdiction, it may be a proper basis for granting
a motion to dismiss. . . . The standard of review for
a court’s decision on a motion to dismiss is well settled.
A motion to dismiss tests, inter alia, whether, on the
face of the record, the court is without jurisdiction. . . .
[O]ur review of the court’s ultimate legal conclusion
and resulting [determination] of the motion to dismiss
will be de novo. . . . When a . . . court decides a
jurisdictional question raised by a pretrial motion to
dismiss, it must consider the allegations of the com-
plaint 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. . . . The motion to dismiss
. . . admits all facts which are well pleaded, invokes
the existing record and must be decided upon that
alone. . . . [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.’’ (Citations
omitted; internal quotation mark omitted.) Electrical
Contractors, Inc. v. Dept. of Education, 303 Conn. 402,
413–14, 35 A.3d 188 (2012). Finally, to the extent that
we must engage in the interpretive construction of our
rules of practice or related statutory provisions, this
‘‘involves a question of law over which our review is
plenary.’’ (Internal quotation marks omitted.) Parnoff
v. Yuille, 163 Conn. App. 273, 281, 136 A.3d 48, cert.
denied, 321 Conn. 902, 138 A.3d 280 (2016). With these
principles in mind, we turn to the plaintiff’s arguments
made in support of its claim that the court improperly
granted the defendants’ motion to dismiss.6
I
The plaintiff first argues that the court improperly
granted the defendants’ motion to dismiss because it
should have treated the amended complaint filed by
the plaintiff pursuant to Practice Book § 10-59 as having
cured any defect regarding the plaintiff’s standing. We
are not persuaded.
As previously noted, Practice Book § 10-59 provides
in relevant part: ‘‘The plaintiff may amend any defect,
mistake or informality in the writ, complaint or petition
and insert new counts in the complaint, which might
have been originally inserted therein, without costs,
during the first thirty days after the return day. . . .’’
Practice Book § 10-59 essentially mirrors the language
found in General Statutes § 52-128.7 In seeking to deter-
mine the meaning of statutory language, we consider
not only the text of the statute but its relationship to
other statutes. General Statutes § 1-2z. This same princi-
ple applies to our construction of our rules of practice.
See Meadowbrook Center, Inc. v. Buchman, 328 Conn.
586, 594, 181 A.3d 550 (2018).
Considered in light of the overall structure of our
rules of practice, we do not construe Practice Book
§ 10-59 as permitting the correction of jurisdictional
defects related to parties. Chapter ten of our rules is
titled ‘‘Pleadings,’’ and, accordingly, contains rules gov-
erning the amendment to the substance of pleadings
in civil proceedings. By contrast, rules concerning the
nonjoinder or misjoinder of parties and, in particular,
the substitution of plaintiffs are found in chapter nine
of our rules of practice, titled ‘‘Parties.’’ ‘‘[I]t is a [well
settled] principle of construction that specific terms
covering the given subject matter will prevail over gen-
eral language of the same or another statute which
might otherwise prove controlling.’’ LaFrance v. Lod-
mell, 322 Conn. 828, 835 n.3, 144 A.3d 373 (2016).
Practice Book § 9-20 specifically addresses the proce-
dure to remedy a defect of the type present in this case:
‘‘When any action has been commenced in the name
of the wrong person as plaintiff, the judicial authority
may, if satisfied that it was so commenced through
mistake and that it is necessary for the determination
of the real matter in dispute so to do, allow any other
person to be substituted or added as plaintiff.’’ Practice
Book § 9-20. This language is identical to that used in
§ 52-109, except that where the rule of practice uses
the term ‘‘judicial authority,’’ the statute uses the
term ‘‘court.’’
Practice Book § 9-20 and § 52-109, thus, expressly
vest discretion in the judicial authority, not the parties,
to permit a substitution of the plaintiff. As our Supreme
Court has explained: ‘‘Although a plaintiff’s lack of
standing is a jurisdictional defect . . . it is a type of
jurisdictional defect that our legislature, through the
enactment of § 52-109, has deemed amenable to correc-
tion and, therefore, not irremediably fatal to an
action. . . .
‘‘[Section] 52-109 allow[s] a substituted plaintiff to
enter a case [w]hen any action has been commenced
in the name of the wrong person as [the] plaintiff, and
that such a substitution will relate back to and correct,
retroactively, any defect in a prior pleading concerning
the identity of the real party in interest. . . . Thus, a
substitution of a real party in interest as the plaintiff
cures the lack of standing of the original plaintiff . . .
and, further, is permissible even after the statute of
limitations has run. . . . An addition or substitution
is discretionary, but generally should be allowed when,
due to an error, misunderstanding or misconception,
an action was commenced in the name of the wrong
party, instead of the real party in interest, whose pres-
ence is required for a determination of the matter in
dispute.’’ (Citations omitted; emphasis added; footnote
omitted; internal quotation marks omitted.) Fairfield
Merrittview Ltd. Partnership v. Norwalk, 320 Conn.
535, 552–53, 133 A.3d 140 (2016).8
Although the court in Fairfield Merrittview Ltd.
Partnership held that a defect in standing potentially
could be cured by the filing of an amended complaint,
it did not hold that a party could cure such a standing
defect on its own simply by filing an amended complaint
as of right in compliance with Practice Book § 10-59.
Rather, our Supreme Court, relying on the express legis-
lative authority granted under § 52-109, concluded that
an addition or substitution of a real party in interest as a
plaintiff, if allowed by the court, would cure the original
plaintiff’s lack of standing. See id.
The plaintiff notes that § 52-128 and Practice Book
§ 10-59 authorize a plaintiff to ‘‘amend any defect, mis-
take or informality’’ in a complaint. Admittedly, read
in isolation, that phrase appears broad. Neither the rule
nor the statute, however, defines the term ‘‘any defect.’’
Moreover, no court has construed Practice Book § 10-
59 or § 52-128 as conferring a right to correct a jurisdic-
tional defect such as standing by allowing the substitu-
tion of a new party plaintiff as a matter of right without
judicial approval. Rather, the rule must be construed
as a means to permit parties to correct technical or
circumstantial defects in the pleading or, as expressly
provided in the rule, for adding counts that could have
been included in the original complaint.
For the foregoing reasons, we are unpersuaded by
the plaintiff’s argument that it properly substituted Nut-
meg as the plaintiff by operation of law by filing, in
compliance with Practice Book § 10-59, an amended
complaint within thirty days of the commencement of
the action.
II
The plaintiff next argues that the court improperly
concluded that the plaintiff was required to file a motion
for permission to substitute Nutmeg as the party plain-
tiff, and that, even if a motion was required, the court
should have treated the amended complaint as a motion
to substitute. We disagree with both contentions.
As we have already discussed in part I of this opinion,
the court lacks subject matter jurisdiction over an
action commenced by a plaintiff without standing. Fur-
thermore, this type of jurisdictional defect cannot be
cured simply by resorting to the procedures set forth
in Practice Book § 10-59. Other than a dismissal of the
action, the only remedy available if the wrong party
commences an action is found in § 52-109 and Practice
Book § 9-20. Those provisions reflect the discretionary
authority of the trial court to substitute the real party
in interest as plaintiff if the court determines that due
to a mistake—meaning an error, misunderstanding, or
misconception—an action was commenced in the name
of the wrong party. See Fairfield Merrittview Ltd. Part-
nership v. Norwalk, supra, 320 Conn. 552–53. Accord-
ingly, because substitution requires some exercise of
discretion and an order by the court, the court correctly
determined that a party seeking a substitution must file
a motion with the court. See Practice Book § 11-2 (‘‘the
term ‘motion’ means any application to the court for
an order, which application is to be acted upon by the
court or any judge thereof’’).
The plaintiff did not file a motion asking the court
to issue an order substituting in Nutmeg but, instead,
filed its amended complaint. The filing of an amended
complaint as of right pursuant to Practice Book § 10-
59 is not the equivalent of filing a proper motion. The
docketing of an amended pleading is insufficient to alert
the court that a party is seeking an adjudication and
order. Moreover, our rules require that a motion seeking
to substitute in a new plaintiff pursuant to Practice
Book § 9-20 be accompanied by a memorandum of law
‘‘outlining the claims of law and authority pertinent
thereto.’’ Practice Book § 11-10. The procedures for fil-
ing a proper motion to substitute were not followed
here.
The plaintiff nevertheless contends that the court
should have treat its amended complaint as a motion
to substitute. In support of this argument, the plaintiff
relies on our Supreme Court’s decision in Fairfield
Merrittview Ltd. Partnership v. Norwalk, supra, 320
Conn. 535. That reliance, however, is misplaced.
In Fairfield Merrittview Ltd. Partnership, our
Supreme Court considered whether, in an action ini-
tially commenced by a party lacking standing due to
its lack of ownership of the property at issue, the prompt
filing of an amended complaint9 that added a party with
standing as an additional plaintiff would be sufficient
to confer jurisdiction on the trial court. Id., 551. As
we discussed previously, the court concluded that the
legislature had deemed such a standing defect, if the
result of mistake, amenable to correction at the discre-
tion of the court by way of an amended complaint. Id.,
552. As in the present case, the amended complaint
filed in Fairfield Merrittview Ltd. Partnership was
filed within thirty days of the return date on the original
complaint. The plaintiff in that case also failed to file
a motion to substitute, but there was no contemporane-
ous objection raised by the defendants to the substitu-
tion. Id., 546. Our Supreme Court held that, although
captioned as an amendment, the plaintiffs’ filing effec-
tively was a motion, which the trial court, in its discre-
tion, granted. Id., 547
In reaching its decision, the court reasoned as fol-
lows: ‘‘Although the plaintiffs here captioned the
motion that accompanied their amended complaint as
a request for permission to amend, it clearly was, in its
substance, a motion to add or substitute a party plaintiff.
. . . Moreover, under the undisputed facts and circum-
stances of the present case, there is no question that the
foregoing requirements for an addition or substitution
were met. Because the [limited liability company (LLC)]
was the sole owner of the property at issue at the
relevant time, its addition as a party plaintiff undeniably
was necessary for a determination of the matter in
dispute, and the naming of the partnership, instead of
the LLC, was due to an error, misunderstanding or mis-
conception. The plaintiffs’ counsel quickly took action
to add the LLC as a party to the proceedings. The defen-
dants have not identified any prejudice that they suf-
fered from the action having been initiated and briefly
maintained in the name of the wrong party, and we
are unable to conceive of any. In sum, the trial court
properly allowed the amendment to add the LLC, which
cured any jurisdictional defect in the original com-
plaint.’’ (Citations omitted; emphasis added; footnote
omitted.) Id., 554–55.
The outcome in Fairfield Merrittview Ltd. Partner-
ship is readily distinguishable from the present case
and, therefore, does not control the outcome of this
appeal. First and foremost, the plaintiffs in Fairfield
Merrittview Ltd. Partnership did not simply file an
amended complaint. Rather, as indicated by our
Supreme Court, their amendment was accompanied by
a request asking the court for permission to amend the
pleadings. In the present case, the plaintiff did not file
a motion to substitute or a motion for permission to
amend; it filed a document captioned ‘‘Plaintiff’s
Amended Complaint.’’ Accordingly, there was no
motion before the court over which it could have exer-
cised its discretion to treat the amendment as a motion
to substitute.
Moreover, the trial court in Fairfield Merrittview
Ltd. Partnership actually had exercised its discretion
to allow a substitution, and the defendants raised no
objection to the amended complaint. Id., 552. In the
present case, the defendants moved to dismiss the
action and objected to the substitution as invalid and
inappropriate. Unlike in Fairfield Merrittview Ltd.
Partnership, the court in the present case never consid-
ered or made a finding of whether the action was initi-
ated by ‘‘mistake,’’ a finding essential to evoking its
discretionary authority to allow a substitution. See
Rana v. Terdjanian, 136 Conn. App. 99, 112, 46 A.3d
175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012). In
sum, we agree with the trial court that, in order to
substitute Nutmeg as the plaintiff, the defendant was
required to file a motion asking the court to exercise
its discretion under § 52-109, and the court did not abuse
its discretion by failing to treat a portion of the amended
complaint as such a motion.
III
Finally, the plaintiff, citing to our Supreme Court’s
decision in Jacobson v. Robington, 139 Conn. 532, 95
A.2d 66 (1953), argues that the court should have con-
cluded that Nutmeg, as the assignee of the promissory
note, was entitled to bring an action to recover the
property in the name of the plaintiff as its assignor. In
other words, the plaintiff argues that the court should
have construed the initial complaint as an action
brought by Nutmeg in the name of the plaintiff as its
assignor. There are a number of flaws in the plaintiff’s
argument. First, it fails to take into account the provi-
sions of the Uniform Commercial Code (UCC), General
Statutes § 42a-3-101 et seq., which was adopted by Con-
necticut after the decision in Jacobson. See General
Statutes § 42a-10-101. Moreover, to credit the plaintiff’s
argument, we would need to interpret Jacobson in a
manner that conflicts with more recent jurisprudence
regarding standing. Although we briefly discuss these
issues, it is not necessary for us to resolve them at this
juncture because our review of the initial complaint,
particularly the allegations made in support of standing,
belies any notion that the plaintiff initiated the action
in its name as the assignor of Nutmeg rather than on
its own behalf.
In Jacobson, the defendant appealed from a judgment
of foreclosure by sale rendered against him following
the entry of a default for failure to appear. Jacobson v.
Robington, supra, 139 Conn. 534. On appeal, the defen-
dant claimed that the court had abused its discretion
by denying a motion to set aside the default and open
the judgment of foreclosure because, inter alia, he had
a viable defense, namely that ‘‘the plaintiff had no stand-
ing to maintain the case because he was no longer the
owner of the note and mortgage.’’ (Emphasis added.)
Id., 539. It is important to note that the defendant did
not argue that the plaintiff lacked standing at the time
he initiated the action. Nevertheless, according to facts
set forth in separate portions of the opinion, the plaintiff
had assigned its interests in the note and mortgage to
a third party on November 24, 1950; id.; but commenced
the foreclosure action on December 19, 1950. Id., 534.
Our Supreme Court rejected the defendant’s claim
that he had a viable standing defense to the foreclosure
action, stating that ‘‘[s]ince [the third party] took by
assignment, it was permissible for him to maintain the
action in the name of his assignor.’’ (Emphasis added.)
Id., 539. The court never acknowledged that the assign-
ment had occurred prior to the commencement of the
action or whether there was any legal significance to
that fact. Instead, likely due to the procedural posture
of the appeal and how the standing issue was presented
to the court, the court focused only on whether the
action was properly ‘‘maintained’’ and went to judgment
in the name of the party that had assigned its interest.
Because the precise issue now before us was not
considered or decided by the court in Jacobson, it is
questionable whether Jacobson reasonably may be read
as standing for the proposition that the plaintiff claims
it does. Significantly, the limited number of appellate
courts that have cited to Jacobson in resolving an issue
of standing have done so in cases in which the plaintiff
had assigned its interest in the case after the action
properly was commenced. See, e.g., Citibank, N.A. v.
Stein, 186 Conn. App. 224, 245, 199 A.3d 57 (2018) (court
had subject matter jurisdiction to adjudicate foreclo-
sure action despite original plaintiff having transferred
its interest in note to third party during pendency of
action), cert. denied, 331 Conn. 903, A.3d (2019);
see also Dime Savings Bank of Wallingford v. Arpaia,
55 Conn. App. 180, 184, 738 A.2d 715 (1999).
Even if Jacobson reasonably could be interpreted as
holding that an action commenced by an assignor of a
promissory note would not fail for lack of standing,
Jacobson was decided prior to this state’s adoption of
the UCC, provisions of which undermine the continued
viability of such a holding. Article 3 of the UCC governs
negotiable instruments, which includes promissory
notes. See General Statutes § 42a-3-102 (a). ‘‘Where the
UCC expressly addresses an issue, the common law
does not supplant the code.’’ Seven Oaks Enterprises,
L.P. v. DeVito, 185 Conn. App. 534, 553, 198 A.3d 88,
cert. denied, 330 Conn. 953, 197 A.3d 893 (2018). The
UCC contains several provisions addressing who has
standing to enforce a note. A ‘‘ ‘[p]erson entitled to
enforce’ an instrument means (i) the holder of the
instrument, (ii) a nonholder in possession of the instru-
ment who has the rights of a holder, or (iii) a person
not in possession of the instrument who is entitled to
enforce the instrument pursuant to section 42a-3-309
or 42a-3-418(d).’’10 General Statutes § 42a-3-301. Thus,
‘‘[u]nder [the applicable provisions of the UCC], only a
holder of an instrument or someone who has the rights
of a holder is entitled to enforce the instrument. . . .
When a note is endorsed in blank, any person in posses-
sion of the note is a holder and is entitled to enforce
the instrument. . . . If an endorsement makes a note
payable to an identifiable person, it is a special endorse-
ment, and only the identified person in possession of
the instrument is entitled to enforce the instrument.’’
(Citations omitted; internal quotation marks omitted.)
U.S. Bank, N.A. v. Ugrin, 150 Conn. App. 393, 401–402,
91 A.3d 924 (2014). The assignment of the note to Nut-
meg included an allonge making the note payable to
Nutmeg. Thus, when the action was commenced, only
Nutmeg had the authority under the UCC to enforce
the note. To the extent that Jacobson can be read to
suggest something to the contrary, we question its con-
tinued viability.
Our standing jurisprudence since Jacobson clearly
establishes that a party can only invoke the jurisdiction
of the court if it had some legal interest in the subject
matter of the action at the time it commenced the law-
suit. Accordingly, if we were to agree that Jacobson
holds that a party that has assigned its interest in a
note could nevertheless bring an action for enforcement
of its terms or to collect property securing the note,
this would turn much of our standing precedent on
its head.
Ultimately, it is not necessary for us to resolve at
this time whether an assignor of a note has standing
to bring an action seeking to enforce terms of the note
on behalf of its assignee because the allegations in the
plaintiff’s initial complaint cannot reasonably be con-
strued as an action brought by Nutmeg in the name of
the plaintiff, Ion Bank. Rather, it is quite clear that the
action was brought by the plaintiff in its own name. It
is axiomatic that ‘‘[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).
In the plaintiff’s initial complaint, it alleged that it had
‘‘a right to immediate possession of the collateral.’’ The
complaint contained no allegations that the plaintiff
had assigned to Nutmeg its interest in the note and in
the collateral securing that note, and that the plaintiff
was bringing the action, not in its own name, but on
behalf of Nutmeg as Nutmeg’s assignor. Because the
complaint is devoid of any jurisdictional facts that
would support a determination that the action was
brought by an assignee in the name of its assignor, it
is not necessary to resolve whether the court would
have had standing if such allegation had been pleaded.
In sum, the plaintiff, which had the burden of alleging
facts sufficient to establish a specific, personal and legal
interest in the property it sought to replevy, could not
properly do so because it had transferred all of its
interest in the note to Nutmeg prior to commencing the
underlying action. Its subsequent attempt to amend the
complaint to remedy the jurisdictional defect without
first obtaining permission of the court to substitute
Nutmeg as the plaintiff was ineffective, and, accord-
ingly, the court properly granted the motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On August 16, 2016, the plaintiff also assigned to Nutmeg the security
agreements and guarantees. The plaintiff has not argued on appeal that the
late assignment of the secondary obligations is relevant to the issue of
standing and, therefore, we do not address whether the assignment of the
note also effectively operated as an assignment of the secondary obligations
underlying it. See Jenzack Partners, LLC v. Stoneridge Associates, LLC,
183 Conn. App. 128, 137, 192 A.3d 455, cert. granted, 330 Conn. 921, 193
A.3d 1213 (2018), and cert. denied, 330 Conn. 921, 194 A.3d 288 (2018).
2
Replevin actions are governed by General Statutes § 52-515 et seq. Gen-
eral Statutes § 52-515 provides: ‘‘The action of replevin may be maintained
to recover any goods or chattels in which the plaintiff has a general or
special property interest with a right to immediate possession and which
are wrongfully detained from him in any manner, together with the damages
for such wrongful detention.’’ Accordingly, to prevail in a replevin action,
a plaintiff must plead and establish not only that the items sought are goods
or chattels wrongfully detained by the defendant, but that the plaintiff has
a property interest in the items and a right to immediate possession. See
Cornelio v. Stamford Hospital, 246 Conn. 45, 49, 717 A.2d 140 (1998).
3
Practice Book § 9-16 provides: ‘‘If, pending the action, the plaintiff
assigns the cause of action, the assignee, upon written motion, may either
be joined as a coplaintiff or be substituted as a sole plaintiff, as the judicial
authority may order; provided that it shall in no manner prejudice the defense
of the action as it stood before such change of parties.’’ (Emphasis added.)
Because the plaintiff assigned the note to Nutmeg prior to the commence-
ment of the action, rather than during its pendency as contemplated by
Practice Book § 9-16, this rule is inapplicable.
4
Practice Book § 10-59 provides in relevant part: ‘‘The plaintiff may amend
any defect, mistake or informality in the writ, complaint or petition and
insert new counts in the complaint, which might have been originally inserted
therein, without costs, during the first thirty days after the return day. . . .’’
5
The defendants also argued as an additional ground for dismissal that
the plaintiff already had commenced an action to foreclose a mortgage on
real property securing the same debt; Ion Bank v. J.C.C. Custom Homes,
LLC, Superior Court, judicial district of Waterbury, Docket No. UWY-CV-
XX-XXXXXXX-S (February 16, 2017); and, therefore, the present action was
barred by the prior pending action doctrine. We note that a judgment of
strict foreclosure and a deficiency judgment were rendered in that action
in 2017. The trial court did not address this claim and the defendants have
not raised it as an alternative ground for affirmance.
6
We address the plaintiff’s arguments in the order that they were briefed
in its principal brief.
7
General Statutes § 52-128 provides: ‘‘The plaintiff may amend any defect,
mistake or informality in the writ, complaint, declaration or petition, and
insert new counts in the complaint or declaration, which might have been
originally inserted therein, without costs, within the first thirty days after
the return day and at any time afterwards on the payment of costs at the
discretion of the court; but, after any such amendment, the defendant shall
have a reasonable time to answer the same.’’
8
‘‘[I]t is well within the authority of a court to permit a substitution of
plaintiffs in lieu of dismissing an action provided that the court determines
that the conditions set forth in § 52–109 have been met. . . . [I]f § 52-109
is to have the ameliorative purpose for which it was intended, then even
assuming that the specter of subject matter jurisdiction rears its head, the
statute is meant to give the trial courts jurisdiction for the limited purpose
of determining if the action should be saved from dismissal by the substitu-
tion of plaintiffs.’’ (Internal quotation marks omitted.) Rana v. Terdjanian,
136 Conn. App. 99, 111, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d
886 (2012).
9
The ‘‘complaint’’ in Fairfield Merrittview Ltd. Partnership was an
administrative appeal of a municipal property tax assessment.
10
Section § 42a-3-301 (iii) concerns enforcement of lost or stolen notes
and other situations not applicable here.