Opinion
Docket No. CVN-0310-1980
November 9, 2006
MEMORANDUM OF DECISION MOTION TO DISMISS
I STATEMENT OF THE CASE
This is an action in damages based on negligence and breach of contract. The defendants have now moved to dismiss the complaint for lack of subject matter jurisdiction because the plaintiff lacks standing to bring this action.
The following facts are relevant to the resolution of the defendants' motion. The plaintiff in this action is Thomas C. Zipp, hereinafter ("Zipp"). Zipp entered into a written one-year lease agreement with the defendants on February 28, 2000. On April 19, 2000, Zipp transferred the property in question by quit claim deed to Thomas C. Zipp, L.L.C., hereinafter ("Zipp, LLC"). After the written lease term ended on February 28, 2001, the defendants continued to occupy the premises. A fire occurred at the premises on August 3, 2001, causing the damage on which this matter is based. When the Writ, Summons and Complaint was served on July 16, 2003, the record owner of the property was Zipp, LLC. On January 30, 2006, the property was transferred to the current record owner, High Street Properties, L.L.C., hereinafter ("High Street, LLC").
II DISCUSSION A Motion to Discuss
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . ." (Internal quotation marks omitted. Cox v. Aiken, 278 Conn. 204, 210-211, 897 A.2d 71 (2006). A motion to dismiss must comply with the Practice Book.
Practice Book Section 10-31 provides that:
(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
(b) Any adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.
"Jurisdiction is the power in a court to hear and determine the cause of action presented to it. Jurisdiction must exist in three particulars: the subject matter of the case, the parties, and the process." (Citations omitted; internal quotation marks omitted) LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976). "Standing goes to the court's subject matter jurisdiction." (Citation omitted.) Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987).
At the outset, this court notes that the plaintiff has argued that: "The defendants' sole basis for the motion is that the Thomas C. Zipp, LLC, is not a plaintiff in this action and it should be. However, as this is more properly the subject of a motion to strike, the Defendants have waived this issue, and their motion to dismiss must be denied and this objection sustained." The plaintiff's argument is not persuasive as a challenge to standing goes to subject matter jurisdiction and is properly raised by a motion to dismiss. See St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003) ("The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.")
Plaintiff's Memorandum in Opposition to the Defendants' Motion to Dismiss, p. 1.
This court also notes that the motion to dismiss is timely. Practice Book § 10-33 provides, in relevant part: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action."
"When a . . . court 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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211. "A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits. Bradley's Appeal from Probate, 19 Conn. App. 456, 563 A.2d 1358 (1989)." Herzog Foundation, Inc. v. Uni. Of Bridgeport, 41 Conn. App. 790, 793, 677. A.2d 1378 (1996). "[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." (Citation omitted; Internal quotation marks omitted.) St. George v. Gordon, supra, 264 Conn. 544-545.
B Standing
"Standing is the legal right to set the judicial process 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 the action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. . . . Standing focuses on whether a party is a proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties." (Citations omitted; internal quotation marks omitted) Investors Mortgage Co. v. Rodia, 31 Conn. App. 476, 479, 625 A.2d 833 (1993). "[S]tanding does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief." (Citations omitted; internal quotation marks omitted.) Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn. App. 632, 638, 803 A.2d 402 (2002).
"`Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . ." (Citation omitted; internal quotation marks omitted.) Avalonbay Communities, Inc. V. Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).
"[W]here a statute . . . sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case." (Internal quotation marks omitted.) Gill v. Diorio, 51 Conn. App. 140, 145, 720 A.2d 526 (1998).
The defendants have argued that the plaintiff, Zipp, was not authorized by statute to bring suit because he was not the record owner of the property when the fire occurred. On August 3, 2001, the record owner of the premises was a limited liability company, Zipp LLC.
"The LLC is an unincorporated form of business organization similar to a general or limited partnership but possessing a limited liability `shield' which protects its owners from liability to the same extent that stockholders of a corporation are insulated from its debts and obligations." R. Convicer L. Schatz, Connecticut Limited Liability Company Forms and Practice Manual (1995 Sup. 2006) Paragraph 1.4.
"Suits may be brought by or against a limited liability company in its own name." General Statutes § 34-186. "Except as otherwise provided in an operating agreement, suit on behalf of the limited liability company may be brought in the name of the limited liability company by: (1) Any member or members of a limited liability company, whether or not the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote of a majority in interest of the members, unless the vote of all members shall be required pursuant to subsection (b) of section 34-142; or (2) any manager or managers of a limited liability company, if the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote required pursuant to section 34-142." General Statutes § 34-187 (a). "A member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member's or manager's right against or liability to the limited liability company or as otherwise provided in an operating agreement." General Statutes § 34-134
In Maile, the plaintiff, Mark Maile, brought an action relating to a money market account for his business, a limited liability company. Maile v. Webster Bank, Superior Court, judicial district of New Britain, Docket No. CV 04-0527763 (February 10, 2005, Burke, J.) (2005 Ct. Supp. 2123). The defendant moved to dismiss on the grounds that the complaint involved an account of the limited liability corporation, and the plaintiff as an individual was not the proper party to the action because he lacked standing. Maile v. Webster Bank, supra, 2005 Ct. Supp. 2125. The plaintiff contended that the lack of standing claim did not implicate the court's subject matter jurisdiction, and was not properly the subject of a motion to dismiss. Id. at 2125. He further argued that he, as the only member of the LLC, had suffered a direct injury and had a real interest in the action and a legal or equitable right, title or interest in the subject matter of the controversy to satisfy the standing requirement. Id. at 2125.
In granting the motion to dismiss, the court in Maile held: "In Connecticut, a limited liability company is regulated by General Statutes § 34-100 et seq. `A limited liability shall have power to [sue] and may sue and be sued . . . General Statutes § 34-124 (b). Suits may be brought by or against a limited liability company in its own name. General Statutes § 34-186. A member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company . . . General Statutes § 34-134.' (Internal quotation marks omitted.) Randolph Foundation v. Appeal From Probate Court, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 98 0167903 (April 3, 2001, Tierney, J.) Because individual members of a limited liability company have no standing to sue, `[a] suit must be brought in the name of the limited company and not in the name of individual members.' Id. In the present case, the limited liability company is the proper party to bring suit since it suffered the alleged harm. The suit was filed, however, by Maile individually. Inasmuch as he does not meet the statutory criteria established in §§ 34-134, 34-186 and 34-187, he lacks standing, and thus, the court lacks subject matter jurisdiction." Id. at 2125-2126.
On April 19, 2000, Zipp transferred his ownership interest in the property to a limited liability company, Zipp LLC. The plaintiff became a member/manager of Zipp, LLC. As a result, ownership of the property was vested in Zipp, LLC. "`Owner' means one or more persons, jointly or severally, in whom is vested (1) all or part of the legal title to property or (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises and includes a mortgagee in possession." General Statutes § 47a-1 (e). When Zipp transferred his ownership interest to the limited liability company, Zipp became insulated from the debts and obligations relating to the property. See R. Convicer L. Schatz, Connecticut Limited Liability Company Forms and Practice Manual (1995 Sup. 2006) Paragraph 1.4.
The defendants argued that: "Again, 47a-10 is a statute governing termination of landlord's liability and that basically states that a landlord who conveys property is relieved of liability under the rental agreement. So we would assert that at the time that Thomas Zipp the individual transferred the property to the LLC that he also transferred any rights under the lease at that time." Transcript, July 27, 2006, pp. 7-8.
General Statutes Sec. 47a-10 provides that:
(a) Unless otherwise agreed, a landlord who conveys premises, which include a dwelling unit subject to a rental agreement, to a bona fide purchaser, is relieved of liability under the rental agreement and the provisions of this chapter and sections 47a-21, 47a-23 to 47a-23b, inclusive, 47a-26 to 47a-26g, inclusive, 47a-35 to 47a-35b, inclusive, 47a-41a, 47a-43 and 47a-46, with respect to any events occurring after written notice to the tenant of the conveyance.
(b) Unless otherwise agreed, a manager of premises which include a dwelling unit is relieved of liability under the rental agreement and this chapter and section 47a-21 as to events occurring after termination of his management.
In addition, after the lease term expired on February 28, 2001, the defendants continued to occupy the premises. Zipp had previously transferred his ownership interest to the limited liability company. When the defendants held over, the record owner of the property was Zipp, LLC. On August 31, 2001, when the fire occurred, Zipp, LLC was the landlord. "`Landlord' means the owner, lessor or sublessor of the dwelling unit, the building of which it is a part or the premises." General Statutes § 47a-1 (d). "[I]t is well settled . . . that a corporation is a distinct legal entity that can act only through its agents." (Internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 263 Conn. 378, 385, 819 A.2d 795 (2003).
The defendants asserted that "the lease expired by its terms and now there's a month-to-month tenancy, and we would assert that any month-to-month tenancy would be between the defendants and the LLC owner of the property at this point." Transcript, July 27, 2006, p. 7.
See "After the written lease expired by its terms, the plaintiff continued to accept the defendant's monthly rent payment, creating a month-to-month tenancy. See General Statutes § 47a-3b; Williams v. Apothecaries Hall Co., 80 Conn. 503, 507, 69 A. 12 (1908). A periodic tenancy may be terminated unilaterally by either landlord or tenant. Hour Publishing Co. v. Gorez, 5 Conn. Cir. Ct. 419, 421, 254 A.2d 919 (1968). `In the case of a rental on a month-to-month basis the tenancy is not regarded as a continuous one. The tenancy for each month is one separate from that of every other month.' Welk v. Bidwell, 136 Conn. 603, 606-607, 73 A.2d 295 (1950). The renewal of a month-to-month tenancy requires the payment of rent by the tenant and the acceptance of payment by the landlord or `other circumstances showing an agreement to continue the lease.' Webb v. Ambler, 125 Conn. 543, 551, 7 A.2d 228 (1939). The mere act of holding over does not create a new tenancy. General Statutes § 47a-3d; Webb v. Ambler, supra, 551. Instead, the holdover tenant becomes a tenant at sufferance with no legal right to possession. Corthouts v. Connecticut Fire Safety Services Corp., 2 Conn. Cir. Ct. 34, 36-37, 193 A.2d 909 (1963). A landlord may properly remove such a tenant at sufferance through a summary process action for lapse of time. General Statutes § 47a-23 (a); Webb v. Ambler, supra, 551." FJK Associates v. Karkoski, 52 Conn. App. 66, 68, 725 A.2d 991 (1999).
See Leonardo v. PSBL Corporation, Superior Court, judicial district of New Haven, Housing Session, Docket No. 0102-10316 (February 27, 2002, Leavitt, J.) ("The defendant occupied the premises under a series of written leases and lease extensions from January, 1980 through June, 1999 and thereafter on an oral, month to month basis."); Macomber v. Sanchez, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP-128104 (September 24, 2004, Dos Santos, J.) ("On September 1, 1999, the plaintiff and the defendants entered into a one-year written lease for the premises. Thereafter, on September 1, 2000, the parties executed another lease for an additional year. As of the date of the second notice to quit, the defendants have occupied the premises under an oral month-to-month lease.")
A lawsuit relating to the damages caused by the fire must be brought in the name of the owner of the property, Zipp LLC. See General Statutes §§ 34-186 and 34-142. Like Maile, the limited liability company was the proper party to bring suit because it suffered the actual harm. When the suit was filed by Zipp, he was not the proper party to bring suit because he had previously transferred his ownership interest to the limited liability corporation. Zipp is not a proper party to bring a lawsuit solely by reason of being a member/manager of the limited liability company. See General Statutes § 34-134. The plaintiff has not satisfied the statutory criteria for standing.
Standing may also be established by showing that the party claiming it is classically aggrieved. See Avalonbay Communities, Inc. v. Orange, supra, 256 Conn. 568. "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 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.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 25, 901 A.2d 649 (2006).
In this case, when the fire occurred, the plaintiff no longer had an ownership interest in the property. General Statute § 34-167 (a) provides in relevant part: "Property transferred to or otherwise acquired by a limited liability company is property of the limited liability company and not of the members individually. A member has no interest in specific limited liability company property." When Zipp transferred his ownership interest to the limited liability corporation, he gained the protections afforded to a member/manager of a limited liability corporation. The specific, personal and legal interest relating to the damages caused by the fire belongs solely to Zipp, LLC, which was the record owner of the premises when the fire occurred. The plaintiff has not made a sufficient showing that he, as an individual, has a specific, personal and legal interest. The plaintiff, therefore, has failed to satisfy the first prong of the test for establishing whether standing exists by showing that he is classically aggrieved.
The plaintiff does not have standing to sue because he is not authorized by statute to bring suit and is not classically aggrieved. Zipp is not entitled to seek the relief requested. Therefore, the court lacks subject matter jurisdiction.
C Substitution
General Statutes § 52-109 provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court 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." See Practice Book § 9-20. "The decision whether to grant a motion for the addition or substitution of a party to legal proceedings rests in the sound discretion of the trial court . . . the Practice Book liberally permits, at any stage of the proceedings, the addition or substitution of a party plaintiff; . . .; but a party plaintiff must be identified and have an interest in the outcome of the controversy for the court to make a complete determination of the matter." (Citations omitted.) Poly-Pak Corp. of America v. Barrett, CT Page 19982 1 Conn. App. 99, 102, 468 A.2d 1260 (1983).
"Our rules of practice, however, permit the substitution of parties as the interests of justice require. General Statutes 52-108, 52-109; Practice Book 100 [9-19], 101 [9-20]; . . . These rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law. . . . General Statutes 52-108 and Practice Book 100 [9-19] provide that `no action shall be defeated by the nonjoinder or misjoinder of parties.' General Statutes 52-109 and Practice Book 101 [9-20] allow a substituted plaintiff to enter a case `[w]hen any action has been commenced in the name of the wrong person as plaintiff. . . .' Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest. In the context of analogous rules of federal civil procedure, it has been observed that `[w]here the change is made on the plaintiffs side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading.' . . . `As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. . . . Thus, an amendment substituting a new plaintiff [will] relate back if the added plaintiff is the real party in interest.' . . . An amendment to pleadings will relate back to its filing, at the very least, and back to the beginning of the action under appropriate circumstances. . . . We see no reason why our general policy with respect to pleadings should not also apply in the context of the substitution of a plaintiff." (Citation omitted.) Federal Deposit Ins. v. Retire. Mgmt. Group, 31 Conn. App. 80, 84-85, 623 A.2d 517 (1993).
In Lupinacci v. Stamford, 48 Conn. Sup. 1, 6-7, 823 A.2d 456 (2002), the court provided an extensive analysis of General Statutes § 52-109:
"`The two conditions that must be met to invoke the statutory remedy of substitution [under . . . § 52-109] are: first, that the action was commenced in the name of the wrong person by mistake; and second, that the proposed substitution is necessary for the determination of the real matter in dispute.' (Internal quotation marks omitted.) Nygren v. Steier, supra, 28 Conn.L.Rptr. 701, citing Dilieto v. County Obstetrics [ Gynecology Group], supra, Superior Court, Docket No. [(X02)] CV 97 0150435[S]." Nygren v. Steier, supra, 28 Conn.L.Rptr. 701.
The first requirement is that the plaintiffs' failure to name Limited as a party plaintiff must have been due to the plaintiffs' mistake. "The court must . . . grant the pending [motion] to substitute if it is satisfied that the plaintiff commenced this action in [his] own name through mistake." (Internal quotation marks omitted.) Nygren v. Steier, supra, 28 Conn.L.Rptr. 701. Though the term "through mistake" is not defined within § 52-109, the Superior Court has addressed the issue and inferred that the term means "an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence, that [he] is the proper person to commence the lawsuit. Only if [he] bears the burden of proving that [he] acted upon such a conviction in commencing the lawsuit can the plaintiff's motion to substitute be granted." (Internal quotation marks omitted.) Id.
The second requirement is that the proposed substitution be necessary for the determination of the real matter in dispute. This requirement involves a determination of whether the proposed plaintiff is the real party in interest because "[s]ubstitution of the real party in interest to pursue a claim is obviously necessary for the determination of the real issue in dispute whenever the original party lacks standing to pursue it. . . . In such circumstances, without the requested substitution, the court would have no subject-matter jurisdiction over the case, and any judgment it might render would be null and void." (Internal quotation marks omitted.) Nygren v. Steier, supra, 28 Conn.L.Rptr. 701 citing Dilieto v. County Obstetrics Gynecology Group, supra, Superior Court, Docket No. (X02) CV 97 0150435S. "The `real party in interest' with respect to a claim is the true legal owner of the claim — one who has a sufficient legal interest in the claim to have standing to pursue it. See generally Richards v. Planning Zoning Commission, 170 Conn. 318, 327, 365 A.2d 1130 (1976). . . ." Dilieto v. County Obstetrics Gynecology Group, supra, Superior Court, Docket No. (X02) CV 97 0150435S.
As a general matter, § 52-109 has been interpreted to allow a substituted plaintiff to enter a case "[w]hen any action has been commenced in the name of the wrong person as plaintiff." (Emphasis added; internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Arpaia, supra, 55 Conn. App. 184-855 n. 2, citing Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., supra, 31 Conn. App. 84. There is, however, some disagreement as to the precise scope of § 52-109 regarding what types of misdescriptions of party plaintiffs should be allowed substitution.
One line of cases draws a distinction between substitutions that correct a misnomer or defect in description and substitutions that amount to an entire change of party. Many of these cases rely on World Fire Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 643-44, 136 A. 681 (1927), where our Supreme Court noted that "[t]he effect given to . . . a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed."
In accordance with World Fire Marine Ins. Co., several Superior Court cases interpret § 52-109 as allowing substitution only where "such substitution would cure a mere misnomer rather than bring in an entirely different party." Palmieri v. Relende, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0341312 (June 27, 1997) (Maiocco, J.); see also Weiss v. Weiss, supra, Superior Court, Docket No. CV 0065932 (denying motion to substitute party plaintiff because § 52-109 should be limited to situation of "mere mistake, misnomer or defect in description"); ITT Semiconductors v. Matheson Gas Products, supra, 5 Conn.L.Rptr. 80 (allowing, in an instance of misnomer, substitution of plaintiff's name from "ITT Semiconductors, A Division of ITT Corporation" to "ITT Corporation, Doing Business as ITT Semiconductors"); PAS Associates v. Twin Laboratories, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0174428 (January 4, 2000) (Mintz, J.) (allowing substitution of party plaintiff because "the defect in the pleadings was merely a misnomer or defect of description").
The second line of cases interprets § 52-109 more broadly. Most of these cases have allowed substitution of plaintiffs that goes beyond mere corrections of misnomer and involve the actual substitution of parties. These cases seem most concerned that the proposed substitutions satisfy the requirements of § 52-109, namely that the error was due to honest mistake and that the substitution be necessary for a determination of the real matter in dispute. See, e.g., Nygren v. Steier, supra, 28 Conn.L.Rptr. 701; BKM Floorcovering, Inc. v. Orlando Annulli Sons, Inc., Superior Court judicial district of Hartford, Docket No. CV 98 0576713 (May 2, 2001) (Berger, J.) (allowing substitution of corporate names and stating that § 52-109 "contemplates a situation where the entirely wrong person institutes a cause of action" and anticipates "that an entirely different person or entity will be able to enter the action"); Engelman v. Zink, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 93 0042735 (June 2, 1998) (Curran, S.T.R.) (allowing substitution of plaintiff in his capacity as trustee for plaintiff in his capacity as executor of estate); Dilieto v. County Obstetrics Gynecology Group, supra, Superior Court, Docket No. (X02) CV 97 0150435S (allowing substitution of entirely different party under § 52-109 after considering whether the defendant would be prejudicially affected by the substitution of plaintiff); Reiner v. West Hartford, supra, Superior Court, Docket No. CV 00 0502686 (allowing substitution of entirely different party under § 52-109 after concluding the misdescription was due to "clerical error or mistake"); Group Discount Dialing v. Group Long Distance, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 96 0255165 (March 14, 1997) (Maloney, J.) (summarily allowing substitution under § 52-109 of individual for company that same individual does business as — entirely different parties). "[A] court may order substitution of plaintiffs in lieu of dismissal whenever the statute's [§ 52-109] conditions are met." Dilieto v. County Obstetrics Gynecology Group, supra, Superior Court, Docket No. (X02) CV 97 0150435S.
The court has to determine whether the plaintiff has provided a sufficient basis to find that the action has been commenced in the name of the wrong person as plaintiff through mistake. The plaintiff contends that "there is no question that the only party that has any interest in the outcome of this case, Thomas Zipp, has been named as the Plaintiff." The plaintiff, however, provided that "in the unlikely case that the court grants the Defendants' motion, this court should allow a substitution." The plaintiff never filed a motion for substitution of party plaintiff in writing as required by Practice Book § 11-1. Although he has asked the court to consider a substitution, he has not provided much, if any, support for the request. The court is left to consider the matter with little help from the plaintiff.
Plaintiff's Memorandum in Opposition to the Defendants' Motion to Dismiss, p. 5.
Plaintiff's Memorandum in Opposition to the Defendants' Motion to Dismiss, p. 8.
At the motion hearing, the plaintiff's entire argument in favor of substitution was as follows: "Finally, opposing counsel here says that I have not asked to substitute the parties and in my objection on page 8 I did say that likewise in the unlikely case that this court grants the defendant's motion this Court should allow substitution. So I am requesting that if you do grant the motion to dismiss that you allow me to substitute the plaintiff. That's all, Your Honor, thank you." Transcript, July 27, 2006, pp. 12-13.
The defect in pleading was clearly not merely a misnomer or a defect of description. In addition, the plaintiff has not offered any explanation for why Zipp, LLC was not named as plaintiff. Zipp's failure to name Zipp, LLC as a party was not due to an honest mistake but was more the result of the plaintiff's own negligence. Though the term "negligence" is not defined in regards to § 52-109, its ordinary meaning, "the lack of due diligence or care," would seem to apply to the instant case. See Ballentine's Law Dictionary (3rd Ed. 1969), p. 840. Not only was the property transferred to Zipp, LLC months before the fire, but the property was later transferred to the current record owner, High Street LLC. Neither limited liability company has been named as a party plaintiff. The plaintiff has not satisfied the requirements for substitution pursuant to General Statutes § 52-109 and Practice Book § 9-20.
III CONCLUSION AND ORDER
For the above-stated reasons, the motion to dismiss is granted.