Litvack v. Artusio
Litvack v. Artusio
Opinion of the Court
“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.” (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 411, 35 A.3d 188 (2012). The principal issue in this appeal is whether the trial court properly held that the plaintiff, suing in her individual capacity, lacked standing to pursue a malpractice action against attorneys who had represented her father before his death. We affirm the judgment of the court dismissing the plaintiffs action for lack of subject matter jurisdiction due to lack of standing.
On April 30, 2007, the plaintiff, Rita Litvack, filed a ten count complaint against the defendants, Marianne Artusio and Touro College,
In the present action against the defendants, Artusio and Touro College, the plaintiff alleged that the defendants were guilty of malpractice because their failure to file a timely motion to substitute the plaintiff for Kaplan as named plaintiff in the Kaplan action caused that action to be dismissed with prejudice. Although, at various junctures, the complaint identifies the plaintiff as the beneficiary and the legal representative of the Kaplan estate, it nowhere states that the plaintiff brought the present action in that capacity. Furthermore, the summons that the plaintiff served on the defendants identifies her simply as “Rita Litvack.”
The defendants moved for summary judgment on two grounds. They argued that the plaintiff lacked standing (1) to maintain the action as a representative of the Kaplan estate because she filed the present action as an individual, rather than as executrix of the Kaplan estate and (2) to sue the defendants as an individual,
Treating the defendants’ motion as a motion to dismiss, in accordance with Bellman v. West Hartford, 96 Conn. App. 387, 392-93, 891 A.2d 82 (2006),
The plaintiff claims that the court improperly (1) dismissed her action against the defendants and (2) denied her motion for leave to amend her complaint.
I
The plaintiff claims that the court improperly dismissed her action against the defendants because, in her view, she has sufficiently alleged a legal interest in the action, both as executrix of Kaplan’s estate and in her individual capacity as an intended and foreseeable
The standard of review for determining whether a court properly dismissed an action for lack of subject matter jurisdiction is well settled. “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . corut decides a jurisdictional question raised by a pretrial motion to dismiss, 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. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010). “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010); see Practice Book § 10-31 (a) (l).
A
The plaintiff claims that the court improperly concluded that she lacked standing to prosecute the present action in her capacity as executrix of the Kaplan estate. We disagree.
“[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts
In the present case, because the summons identified the plaintiff only as “Rita Litvack” and not as executrix of the Kaplan estate, the court properly held that the plaintiff lacked standing to sue in a representative capacity. In addition, the specific allegations in the various counts of the plaintiffs complaint demonstrate that the plaintiff was seeking compensation for alleged misconduct by the defendants that had caused her to suffer personal injury. For example, the plaintiff contends that she was personally damaged (1) by the defendants’ tortious misconduct in permitting “the dismissal of the [Kaplan action], which would have determined her substantive rights to the funds removed from [Kaplan’s] bank accounts”; (2) as third party beneficiary of Kaplan’s contract with the defendants, by “the defendants’ breach of the contract”; and by the loss of the “opportunity to have a determination on the merits [in the Kaplan action], which would have determined her interest in certain funds misappropriated from . . . Kaplan . . . .”
In sum, both the summons and the allegations of the plaintiffs complaint demonstrate the propriety of the court’s conclusion that the plaintiff sought recovery for alleged injuries that she suffered in her individual capacity, rather than injuries to the Kaplan estate. The plaintiff has cited no authority for her contention that, because she identified herself in her pleadings as Kaplan’s daughter and executrix of the Kaplan estate, she automatically had asserted her standing as her
B
The plaintiff claims, alternatively, that the court improperly concluded that she lacked standing to maintain the present action in her capacity as an individual. The plaintiff maintains that she has standing to pursue her claims against the defendants both as an intended third party beneficiary and as a foreseeable beneficiary of the legal services contract between the defendants and Kaplan. We are not persuaded.
The law regarding the creation of third party rights in legal services contracts is well settled. “As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services.” Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988). To determine when attorneys should be held liable to parties with whom they are not in privity “courts have looked principally to whether the primary or direct purpose of the transaction was to benefit the third party.” Id., 245. “[A] third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party.” Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981).
We agree with the court that, in this case, the plaintiffs pleadings fail to allege facts sufficient to establish that, when entering into the legal services contract with Kaplan, the defendants undertook to become obligated to the plaintiff as a third party beneficiary. The plaintiff alleges, and the defendants do not deny, that they rendered legal services “for the benefit of . . . Kaplan.” The retainer in which the defendants’ contracted to perform legal services for Kaplan did not refer to the plaintiff, either directly or by necessary implication. The plaintiffs contention that Artusio and Kaplan had
The plaintiffs alternate claim, that she was a foreseeable beneficiary of the legal services contract, is similarly unpersuasive. See Gazo v. Stamford, 255 Conn. 245, 267, 765 A.2d 505 (2001). Although the intended beneficiary of a will may have a cause of action for the improper preparation of a testamentary document; see Stowe v. Smith, supra, 184 Conn. 198-99; the plaintiff has cited no authority for imposing such liability on attorneys who entered into a retainer for ordinary legal services.
Under the circumstances of this case, we conclude that the plaintiff failed to allege facts to establish that she has any personal legal interest in the contract between Kaplan and the defendants. Suing in her individual capacity, rather than as executrix of the Kaplan estate, the plaintiff has failed to establish a basis for her claim that she was either a third party beneficiary or a foreseeable beneficiary of that contractual undertaking.
Ill
Finally, the plaintiff claims that the court improperly denied her motion for leave to amend her complaint, which she filed subsequent to the court’s judgment dismissing her action for lack of standing. In her motion, the plaintiff relied on General Statutes § 52-123
“A trial court’s ruling on a motion of a party to amend its complaint will be disturbed only on the showing of
We agree with the trial court that the plaintiffs cause of action does not fall within the provisions of § 52-123, as the allegations of her complaint “conflate the legal capacity of the plaintiff as executrix and her individual capacity.”
In sum, we conclude that the court properly granted the defendants’ motion to dismiss because the facts
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiff alleged that Touro College was vicariously liable for the acts and omissions of Artusio, its agent and employee.
The defendants also alleged that the plaintiffs claims were barred by the applicable statutes of limitation and by the plaintiffs own negligence.
The court properly treated the defendants’ motion for summary judgment as a motion to dismiss, and we review it as such. See Cadle Co. v. D’Addario, 268 Conn. 441, 445 n.5, 844 A.2d 836 (2004) (motion for summary judgment challenging standing treated as motion to dismiss); St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003) (lack of standing can be raised in motion to dismiss).
We decline to review the plaintiffs additional claim, that the trial court improperly denied her motion for reargument, because it was not adequately briefed. Carmichael v. Stonkus, 133 Conn. App. 302, 307, 34 A.3d 1026, cert. denied, 304 Conn. 911, 39 A.3d 1121 (2012).
Practice Book § 10-31 (a) provides in relevant part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .
The plaintiff maintains that, as executrix of the Kaplan estate, she contacted Artusio to continue the Kaplan action and, therefore, became a third party beneficiary to the legal services contract. That argument is unavailing. Any contract between the plaintiff and Artusio that was negotiated by the plaintiff in her role as executrix of the Kaplan estate is irrelevant to the plaintiffs standing to maintain the present action in her individual capacity.
The plaintiff maintains that, as an intended beneficiary of the legal services contract, she also may recover damages in tort based on the defendants’ failure to substitute her as the named plaintiff in the Kaplan action. As the trial court did not discuss this claim, and the plaintiff did not file a motion for articulation of the court’s decision, we decline to address it. Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 674-75, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).
Indeed, after the defendants filed the complaint in the Kaplan action, Lehrer filed a third party complaint against the plaintiff, alleging that the
General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”
We agree with the defendants that the omission of “executrix” on the summons was not solely a circumstantial error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.