DBD—CV-18-5014197—S 1 f: " 3SUPERIOR COURT
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`PLATINUM LUXURY AUCTIONS, LLCleia{“1
`2 P?i L): 3%JUDICIAL DISTRICT
`OF DANBURY
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`v.
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`_
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`THOMAS J. BARBARIE
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`‘
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`MAY 2, 2019
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`MEMORANDUM OF DECISION
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`Defendant Thomas J. Barbarie (“Buyer”) has moved to strike the complaint of plaintiff
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`Platinum Luxury Auctions, LLC (the “Auctioneer”) based on provisions of a contract to'
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`purchase certain realproperty on the ground that the sellers of the subject property, Julian and
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`Stefan Abbruzzese (“Sellers”), are not parties to this action. For the reasons stated below, the I
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`motion to strike is denied.
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`The Standards for Deciding a Motion to Strike
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`“The purpose of a motion to strike is to contest .
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`. the legal sufficiency of the allegations
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`of any complaint .
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`to state a claim upon which relief can be granted.” (Internal quotation
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`marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188
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`(2003). “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently,
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`requires no factual findings by the trial court .
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`. [The court] construe[s] the complaint in the
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`manner most favorable to sustaining its legal sufficiency .
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`. Thus, [i]f facts provable in the
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`complaint would support a cause of action, the motion to strike must be denied .
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`. Moreover, ‘
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`[the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly
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`alleged .
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`. It is fundamental that in determining the sufficiency of a complaint challenged by a
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`defendant’s motion. to strike, all well—pleaded facts and those facts necessarily implied from the
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`allegations are taken as admitted .‘
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`Indeed, pleadings must be construed broadly and
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`realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Coppola
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`Construction Co. V. Hoflrnan Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480
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`(2013). “If any facts provable under the express and implied allegations in the plaintiffs
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`complaint support a cause of action .
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`. the complaint is not vulnerable to a motion to strike.”
`Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d l (1991). On the other hand, “[a]
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`motion to strike is properly granted if the complaint alleges mere conclusions oflaw that are
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`unsupported by the facts alleged.” (Internal quotation marks omitted.) Santorso v. Bristol
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`Hospital, 308 Conn. 338, 349 (2013).
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`“‘Whenever a party wishes to contest .
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`. the legal sufficiency of any such complaint .
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`or any count thereof, because of the absence of any necessary party .
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`. that party may do so by
`filing a motion to strike the contested pleading or part thereof.” Wilson v. Bradley, 50 Conn.
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`Supp. 234, 237 (2007) (Aurigemma, J.) quoting George V. St. Ann’s Church, 182 Conn. 322, 325
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`(1980).1 Practice Book §10-39 provides: “(d) A motion to strike on the ground of the non—joinder
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`of a necessary party or noncompliance with Section 17-56 (b) must give the name and residence
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`of the missing party or interested person or such information as the moving‘party has as to the
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`identity and residence of the missing party or interested person and must state the missing party’s
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`or interested person’s interest in the cause of action.” Because of the requirement that the
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`missing party’s interest be stated in a motion to strike for failure to join an interested party,
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`“speaking” motion to strike are permitted to comply with the rule. See O’Connell v. Zehring,
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`I The failure to join. an indispensable party does not deprive the Court of subject matter
`jurisdiction unless a statute requires such joinder. See 1220 v. Quinn, 170 Conn. App. 631, 639
`(2017). “‘It is well established .
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`. that an action cannot be defeated due to the nonjoinder or
`misjoinder of parties, and failure to notify or join indispensable parties does not deprive a court
`of subject matter jurisdiction. General Statutes § 52- 108.
`.Instead, the remedy for nonjoinder
`of parties is by motion to strike. ”’ Id. quoting Fountain Pointe, LLC v. Calpitano, 144 Conn.
`App. 624, 648-49 (2013).
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`2017 WL 2837822 *3 (Conn. Super. 2017) (Moore, J.) citing Bloom v. Miklovich, 11 Conn.
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`App; 323, 332 n.6 (2007).
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`g The SellersAre Not Necessary Parties to the Claims Asserted.
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`“‘Necessary parties .
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`. have been described as [p]erSons having an interest in the
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`controversy, and who ought to be made parties, in order that the court may act on that rule which
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`requires it to decide on, and finally determine the entire controversy, and do complete justice, by
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`adjusting all the rights involved in it. .
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`.
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`. [B]ut if their interests are separable from those of the
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`parties before the court, so that the court can proceed to a decree, and do complete and final
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`justice, without affecting other persons not before the court, the latter are not indispensable
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`parties.” Costello v. Goldstein and Peck, 187 Conn. App. 486, 495 (2019) quoting Sturman v.
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`Socha, 191 Conn. 1, 6-7 (1983).2
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`Defendants argue that the Sellers are necessary parties because they, not plaintiff, are
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`signatories to the real estate contract with the Buyers (the “Contract”). This argument contradicts
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`allegations in the complaint and ignores the provisions in the’operative agreements which require
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`the Buyers to provide the funds to pay the Auctioneer the commission fees agreed to by the
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`Buyers and the Sellers.
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`The Complaint has two counts: breach of contract and promissory estoppel. The
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`complaint alleges the Sellers hired the Auctioneer to auction the subject property. The Buyer
`signed the terms of sale as a bidder which required the Buyer to provide a cashier’s check to the
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`settlement agent in the amount of $100,000. Prior to the auction the Buyer made an offer to
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`purchase which was accepted by the Sellers. The Auctioneer canceled the auction planned for
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`the Appellate Court notes the “somewhat archaic”
`In Costello, 187 Conn. App. 495 n.7,
`distinction between a “necessary” and an “indispensable” party noted in Sturman, 191 Conn. at
`6-7.
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`later that day. The Buyer and Sellers entered into a non-contingent purchase and sale agreement
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`that included as an attachment an “Auction Addendum to Purchase and Sale Agreement.” The
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`Buyer failed to closeiand failed to tender the $170,500 deposit called for in the agreement that
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`was .ten percent of the purchase price of $1,705,000.
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`In support of the motion to strike the Buyer provided a copy of the Contract which
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`acknowledged the “auction-marketing services” provided by the Auctioneer and stated: “[t]he
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`’ parties hereby acknowledge that the gross offer of $1,705,000.00 is derived from the sum of a
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`bid basis of $1,550,000.00 plus a 10% Buyer’s Premium of $155,000.00.” The auction
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`addendum signed by the Buyer and Sellers affirmed that, in accordance with theterms of sale
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`delivered to the Buyer prior to execution, the contract price includes a ten percent “Buyer’s
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`Premium charged to Buyer”, which “shall be utilized to pay the agreed upon commissions due
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`to” the Auctioneer. After the Buyer makes the contract deposit to the closing agent, the agent
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`“will disburse such commissions. . .” to the Auctioneer.
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`The terms of the operative agreements tend to establish the Auctioneer was a third party
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`beneficiary of the Contract and in equity the Buyerlis estopped to deny payment of the “Buyer’s
`Premium” to be paid thereunder for use in paying Commissions due the Auctioneer.
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`In Hilario ’5' Truck Center, LLC V. Rinaldi, 183 Conn. App. 597, 604-605 (2018), the
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`Appellate Court discussed when a non-party may enforce a contract as a third party beneficiary:
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`“‘A third party beneficiary may enforce a contractual obligation without being in privity
`with the actual parties to the contract.’ .
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`. ‘Therefore, a third party beneficiary who is not a
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`named obligee in a given contract may sue the obligor for breach.’ .
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`. ‘[T]he ultimate test to be
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`applied [in determining whether a person has a right of action as a third—party beneficiary] is
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`whether the intent of the parties to the contract was that the promisor should assume a direct
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`obligation to the third party [beneficiary] and .
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`. that intent is to be determined from the terms of
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`thecontract read in the light of the circumstances attending its making, including the motives and
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`purposes of the parties. .
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`. Although .. .I it is not in all instances necessary that there be express
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`language inthe contract creating a direct obligation to the claimed third party beneficiary .
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`. the
`only way a contract could create a direct obligation between a promisor and a third party
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`beneficiary would have to be .
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`. because the parties to the contract so intended.’ .
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`. ‘[B]oth
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`contracting parties must intend to confer enforceable rights in a third party’; .
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`. in order to give
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`the third party standing to bring suit. This requirement ‘rests, in part at least, on the policy of
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`certainty in enforcing contracts,’ which entitles‘each party to a contract ‘to know the scope ofhis
`or her obligations thereunder.”’ (Citations omitted.)
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`It is evident the parties to the Contract intended that the buyer’s premium was to provide
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`the funds to be paid to the Auctioneer as commissions. The Sellers’ closing agent was merely a
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`conduit to pay the Auctioneer the commissions it was due. Buyer breached the terms of the
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`addendum by failing to pay the deposits due under the contract, which were to be used to pay the
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`commissions.
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`The Buyer could also be found to be estopped to deny its promise to make the payment
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`that was supposed to be used to pay the commission to the Auctioneer. In US. Bank Nat, Assoc.
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`v. Eichten, 184 _Conn. App. 727, 766-67 (2018), the Appellate Court discussed the doctrine of
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`promissory estoppel:
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`,
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`“G
`_[U]nder the doctrine of promisSory estoppel [a] promise which the promisor should
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`reasonably expect to induce action or forbearance on the part of the promisee or a third person
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`and which does induce such action or forbearance is binding if injustice can be avoided only by
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`enforcement of the promise. .
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`. A fundamental element of promissory estoppel, therefore, is the
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`existence of a clear and definite promise which a promisor could reasonably have expected to
`induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if,
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`judged by an objective standard, he had no reason to expect any reliance at all. .
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`. ‘Additionally,
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`the promise must reflect a present intent to commit as distinguished from a mere‘statement of
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`intent to contract in the future. .
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`. [A] mere expression cf intention, hope, desire, or opinion,
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`which shows no real commitment, cannot be expected to induce reliance .
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`. and, therefore, is
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`not sufficiently promissory. The requirements of clarity and definiteness are the determinative
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`factors in deciding whether the statements are indeed expressions of commitment as opposed to
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`expressions of intention, hope, desire or opinion. .
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`. Finally, whether a representation rises to
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`the level of a promise is generally a question of fact,
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`to be determined in light of the
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`circumstances under which the representation was made.’ .
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`. ‘[A] promisor is not liable to a
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`promisee who has relied on a promise if, judged by an objective standard, he had no reason to
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`expect any reliance at all.’” (Citations omitted).
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`The Buyer made a clear and definite promise to pay the buyer’s premium called for under
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`the Contract that the parties intended was to be used to pay the Auctioneer’s commissions. The
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`promise was clear and definite and evinced a present intent to enter into a binding contract to
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`provide the funding for the commission payment. In reliance the Auctioneer cancelled the
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`auction so as to facilitate the private sale. This reliance was the foreseeable result of the Buyer’s
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`commitment in the Contract to pay the buyer’s premium.
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`Under either theory the Sellers would not be a necessary party because the Auctioneer’s
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`claims are separate and distinct from any claims the Sellers may have against the Buyer and
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`requiring the Buyer to answer in damages for the Auctioneer’s lost commissions and expenses
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`would not adversely affect the Sellers, who are not parties to this action. “The plaintiffs are
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`neither necessary nor indispensable parties in the other’s case. Each plaintiff’s case can be fully
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`and fairly reso1ved without the other being a party. Each of the plaintiffs had a separate and.
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`distinct legal claim and the result of one would not necessarily govern the result of- the other.”
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`Costello, 187 Conn. App. at 494—95.
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`The motion to strike is denied.
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`BY THE COURT,
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