Opinion
No. CV04 400 00 81
June 24, 2005
MEMORANDUM OF DECISION
FACTS
This action, instituted in the name of Century 21 Across America against Mayra Garcia, was returnable to this court on July 27, 2004.
In the Verified Complaint, it is claimed that Century 21 Access America (C-1), is an entity engaged in the sale, purchase and/or listing of real property in the State of Connecticut, with its principal place of business at 3850 Main Street, Bridgeport.
It is claimed that the defendant, Mayra Garcia, entered into a written agreement with the plaintiff on October 29, 2003, to serve as a sales representative, in the capacity of an independent contractor.
The plaintiff claims that on April 30, 2004, the defendant voluntarily terminated her agreement with C-1, and accepted a position with a competitor, Remax Real Estate.
The plaintiff claims that in accepting the position with a competing concern, the defendant breached the agreement. C-1 has brought this action to enforce rights it claims under the October 29, 2003 document.
C-1's request for a temporary injunction seeking to enforce the terms of a restrictive covenant was denied by the court (Levin, J.), in a Memorandum of Decision dated August 5, 2004.
On May 3, 2005, C-1 filed a Motion to Correct, claiming that the correct plaintiff is "Access America, LLC, d/b/a Century 21 Access America," as stated in a trade name certificate dated March 23, 2005, and on file with the Connecticut Secretary of State.
The Motion to Correct was filed, pursuant to § 52-123 of the General Statutes.
§ 52-123 "No write, 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."
The defendant responded by filing a Motion to Dismiss, and an objection to the Motion to Correct, both dated May 10, 2005.
In her Motion to Dismiss, the defendant claims that the court lacks jurisdiction, because suit was instituted in the name of "Century 21 Across America," a fictitious entity, rather than "Access America, LLC, d/b/a Century 21 Access America."
STANDARD OF REVIEW
A Motion to Dismiss is the appropriate vehicle for challenging the jurisdiction of the court, by asserting that the plaintiff is unable, as a matter of law and fact, to state a cause of action which can be heard. Baskin's Appeal from Probate, 194 Conn. 635, 640 (1984); Gurlacci v. Meyer, 218 Conn. 531, 544 (1991); Practice Book § 10-31.
The purpose of the motion is to test whether, on the face of the record, the court lacks either personal or subject matter jurisdiction. Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648 (1954); Upson v. State, 190 Conn. 622, 624 (1983).
PLAINTIFF SHOULD BE PERMITTED TO SUBSTITUTE PROPER PARTY
The defendant claims that the court lacks subject matter jurisdiction, because the action was initiated in the name of a fictitious entity. She cites the Appellate Court decision in America's Wholesale Lenders v. Pagano, 87 Conn.App. 474 (2005) in support of her claim.
In Pagano, a divided court held that the plaintiff could not substitute the party in whose name a mortgage had been negotiated, Countrywide Home Loans, Inc. for a fictitious entity, America's Wholesale Lender.
The party in whose name the action was brought, had not filed a trade name certificate, and nothing in the name used indicated a connection between the entity listed, and Countrywide Home Loans, Inc.
In this case, the words "Access America" appear in both the name in which suit was instituted, and in the Limited Liability Company (LLC) which the plaintiff seeks to substitute.
A trade name certificate is on file in the City of Bridgeport, and was on file prior to the Motion to Correct being filed.
The address of the real estate office is listed in the complaint, and a specific written agreement between the parties, entered into on a date certain, is also referenced.
The use of the name "Century 21 Access America" in the initial complaint, did not fool or mislead any party as to the nature of the action, or the identity of the plaintiff.
Section 52-123 is a remedial statute, intended to mitigate the Draconian common-law rule requiring dismissal of an action instituted in the name of the wrong party, or in which the original process contains a misnomer or misdescription of a party. It must therefore be liberally construed in favor of those the legislation was intended to benefit. Andover Ltd. Partnership, Inc. v. Board of Tax Revenue, 232 Conn. 392, 396-97 (1995).
Factors to be considered in determining whether a particular error was a misnomer, and therefore a circumstantial defect under General Statutes § 52-123, include whether the proper party had notice of the nature of the proceeding, whether the plaintiff or the defendant knew of the identity of the intended party, and whether a party was in any way misled by the improper designation. Pack v. Burns, 212 Conn. 381, 385 (1989).
The rule has been utilized to aid a plaintiff, allowing an amendment to identify the proper defendant. World Fire Marine Insurance Co., Inc. v. Alliance Sandblasting Co., 105 Conn. 640 (1927); Lussier v. Department of Transportation, 228 Conn. 343, 350 (1989). However, the application of the statute has not been confined to situations involving a misnamed defendant. Dyck O'Neal, Inc. v. Wynne, 56 Conn.App. 161 (1991).
This case is controlled by Dyck O'Neal, supra, a case distinguished by the majority in Pagano. American's Wholesale Lender v. Pagano, supra, 478-79.
In Dyck O'Neal, the court permitted the correction of the name of a party to a foreclosure action, following the entry of judgment.
Given the remedial purpose of § 52-123, Connecticut General Statutes, and the policy that court's favor decisions on the merits of a cause of action; Grecco v. Keenan, 115 Conn. 704, 705 (1932); Andover Ltd. Partnership, Inc. v. Board of Tax Review, supra, 400; a court should avoid interpreting a rule or statute so strictly, that a litigant is denied a hearing on the merits of a claim due to a mere circumstantial defect. Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111 (1975); America's Wholesale Lenders v. Pagano, supra, 485 (Berdon, dissenting).
Other provisions of the General Statutes also provide support for permitting the amendment.
§ 52-109, C.G.S. "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 . . . as plaintiff.
Here, there can be no creditable claim that the defendant was confused or misled about the entity bringing the action, the nature of the cause of action, or the nature of the proceedings.
It is found that the failure to bring suit in the name of the appropriate LLC represents the type of circumstantial defect or misnomer, which § 52-123, C.G.S. was intended to remedy, in the absence of prejudice to any party.
The defendant's Motion to Dismiss is DENIED, and the plaintiff's Motion to CORRECT is GRANTED.
The plaintiff's objection to the Motion to Dismiss, is SUSTAINED.
RADCLIFFE, J.