Opinion
No. 5000190
August 14, 2006
MEMORANDUM OF DECISION RE MOTION TO CITE IN NEW PARTY #108
FACTS
This action was commenced by the plaintiff, William Fish, by way of a three-count complaint dated August 31, 2005, alleging negligence on the part of the defendants, KJ Investments, LLC, James Quarto, and Darryl Wickham. James Quarto d/b/a KJ Investments, LLC ("Quarto") was/is the owner of real property located at the corner of North Main Street and Seventh Street in the Greenville Section of Norwich, Connecticut. Darryl Wickham was an employee, agent and/or servant of the defendant owner. The plaintiff claims that on or after September 1, 2003, the plaintiff was an invited guest upon the rooftop of Quarto's building where a roofing project was underway. While on the roof, the plaintiff was asked by Wickham to carry roofing shingles from a flat section of the roof onto the sloped section of the roof where Quarto was installing the shingles. As the plaintiff was carrying the shingles, Wickham gave a hard and quick pull on a pneumatic air hose that was laying next to the plaintiff's feet thereby causing the plaintiff's feet to become entangled with the hose and causing the plaintiff to trip and fall from the roof onto the ground below. As a result of the fall, the plaintiff suffered injuries and was required to spend money for medical care.
On February 8, 2006, the plaintiff filed a motion to cite in new parties pursuant to Practice Book § 9-22. The plaintiff requests that the defendant, 488 North, LLC, be added to the action and that he be allowed to file an amended complaint. The plaintiff states that 488 North, LLC was not named in the original complaint; however, it was discovered in the response to production that the defendant, KJ Investments, may also be known as 488 North, LLC and the two named individual defendants were, at the time of the incident, covered by insurance under the name of 488 North, LLC. On February 21, 2006, the named defendants object to the plaintiff's motion to cite in new parties, with supporting memorandum, arguing that any action against 488 North, LLC is precluded by the two-year statute of limitations set out in General Statutes § 52-584. Oral argument was heard by this court on April 17, 2006.
DISCUSSION
"The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court." (Internal quotation marks omitted.) Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1977). "Factors to be considered include the timeliness of the application, the possibility of prejudice to the other party and whether the applicant's presence will enable the court to make a complete determination of the issues." A. Secondino Son, Inc. v. LoRicco, 19 Conn.App. 8, 14, 561 A.2d 142 (1989); see also Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980).
"General Statutes § 52-102 now makes it mandatory for a trial court to grant a party's motion to add a person as a party if that person is necessary for a complete determination or settlement of any question involved therein . . ." (Internal quotation marks omitted.) Donner v. Kearse, 234 Conn. 660, 669, 662 A.2d 1269 (1995). "Necessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it." (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225-26 n. 10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).
"Upon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy."
"In Martin v. O'Meara, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 160364 (March 18, 1998, Karazin, J.) ( 21 Conn. L. Rptr. 537), the court determined that it is inappropriate to address the merits of the underlying action when considering a motion to cite in a party defendant. The court stated the following reasons for its conclusion: 1) the court does not necessarily have the complaint that asserts the cause of action against the additional defendant at the time the ruling on the motion to cite in is made; 2) all of the procedural vehicles available to challenge the adequacy of the complaint are available to the cited in defendant; 3) in some situations, the existing defendant may not have standing to challenge the new complaint because the right rests with the cited in defendant; and 4) it logically may be concluded that because no argument as of right is available on a motion to cite in, the legislature and/or rules committee never intended for the court to address the legal sufficiency or merits of an action on a motion to cite in. Id., 537-38." (Internal quotation marks omitted.) Stop Shop v. Alan D. Loeser Co., Superior Court, judicial district of Fairfield Docket No. CV 00 0378384 (August 8, 2001, Skolnick, J.) ( 30 Conn. L. Rptr. 163).
These four criteria are illustrative of the issues this court faces in making its ruling. First, in the present case, the court does not have the amended complaint detailing what the cause of action will be against the additional defendant. To the extent the plaintiff seeks to simply add the term "a/k/a" or "d/b/a" after KJ Investment's name, such terms are merely descriptive and do not serve to create a separate legal entity; therefore, an amended complaint would not be necessary. See Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000) ("It appears well settled that the use of a fictitious or assumed business name `does not create a separate legal entity . . . [and that] [t]he designation [d/b/a] . . . is merely descriptive of the person or corporation who does business under some other name.'") Second, all of the procedural vehicles available to challenge the adequacy of the complaint are available to the cited in defendant. In the amended complaint, the plaintiff may seek to add a separate negligence action against 488 North, LLC, which the defendants argue would be precluded by the applicable two-year statute of limitations set out in General Statutes § 52-584. It is the court's belief that such substantive objections are not properly before the court on a motion to amend. The proper way to raise the statute of limitations would be to file a special defense and then move for summary judgment. See McGuire v. State, Superior Court, judicial district of Hartford, Docket No. CV 01 0805798 (July 23, 2004, Booth, J.). Neither matter was briefed by the plaintiff, who stated at oral argument that he did not file one because he did not expect the motion to be opposed.
"Practice Book § 11-10 provides: A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests: (1) motions regarding parties filed pursuant to Sections 9-18 through 9-22." (Emphasis added; internal quotation marks omitted.) Krevis v. Bridgeport, 262 Conn. 813, 817 n. 6, 817 A.2d 628 (2003); see Schiavone v. SAL of New London, LLC, Superior Court, judicial district of New London, Docket No. CV 06 4005245 (March 7, 2006, Jones, J.) ("The requirement . . . is not merely directory, but must be followed where a seasonable objection to the failure of the movant to comply with the rule is raised by the opposing party"). The defendants, however, did not object.
This court finds the rationale in Martin v. O'Meara, supra, 21 Conn. L. Rptr. 537, both persuasive and necessary and, therefore, without considering the merits of the defendants' claims, the court holds that 488 North, LLC is a necessary party to the present action and should be cited in as a party defendant because it is necessary for a complete determination or settlement of the present action. Accordingly, the plaintiff's motion to cite in new parties and his request for leave to file an amended complaint are hereby granted. This court does not rule on the question of whether the proposed amendment is barred by the statute of limitations.