Opinion
No. CV 06-5007577S
June 7, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS, #102 AND MOTION TO SUBSTITUTE, #105.
The complaint in this case alleges that in October 2004, when she was 15 years old, Allyson Fotheringhame struck her face against a portable table in her high school gymnasium and injured herself as a result of the negligence of the defendants, City of East Haven, City of East Haven Board of Education, Martin DeFelice, Anita Ruff and Tara Criscuolo.
The plaintiff initiated this action in October 2006, in the name of Ann Fotheringhame (Allyson's mother) PPA her daughter Allyson. The defendant filed a Motion to Dismiss (#102) arguing that this court lacks subject matter jurisdiction because the action should have been brought by the minor child, Allyson Fotheringhame PPA her mother, Ann Fotheringhame. The defendants also argue that the action against defendant DeFelice must be dismissed because he died three months prior to the initiation of the action. Both parties filed briefs in support of (#103.5) and in opposition to (#108) the Motion to Dismiss. And, the plaintiff filed, simultaneously with her Objection to the Motion to Dismiss (#108), a Motion to Substitute Party Plaintiff (#105) and a Memorandum of Law in Support of Motion to Substitute (#106). In her Motion to Substitute Party Plaintiff, plaintiff's counsel claims that "the plaintiff, Ann Fotheringhame, was listed by mistake . . . that the plaintiff, the minor child Allyson Fotheringhame, is the injured party"; and that substitution pursuant to § 52-109 and Connecticut Practice Book § 9-20 will not change the allegations and the injuries in the complaint. The defendants filed an Objection to Motion to Substitute Party Plaintiff. For reasons, more fully explained below, this court denies the motion to dismiss the first, second, fourth and fifth counts of the complaint; grants the motion to dismiss the third count of the complaint; and grants the plaintiff's motion to substitute.
"PPA" is an abbreviation of the Latin phrase "per proxima amici" meaning next kin or next of friend. Algan v. Matos-Matorelli, Superior Court, judicial district of New Haven, Docket No. CV 040491437 (December 21, 2004, Zoarski, JTR).
Defendants' objection was not assigned a motion number, but it was file-stamped by the Clerk's Office on February 20, 2007.
Though these matters regarding subject matter jurisdiction arise fairly frequently, no appellate court decision has addressed the issues presented by the pending motions: whether a trial court must grant a motion to dismiss when an action is commenced incorrectly, in the name of the parent/adult on behalf of a minor child, rather than in the name of the minor child PPA the parent/adult, without first considering a pending motion to substitute.
The issues presented in this case have yielded two separate and distinct lines of Superior Court decisions: those following the reasoning articulated in LaChance v. City of Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 980148936 (August 22, 2001, Doherty, J.) [ 30 Conn. L. Rptr. 245] (which concludes that an action must be dismissed if it is commenced in the name of the adult rather than the child, for injuries alleged to have been sustained by the child); Barrett v. Alborzi, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 040412812 (January 28, 2005, Dewey, J.) (same); Seabrook v. Greater Bridgeport Transit, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95 0328366 (April 9, 1998, Skolnick, J.) [ 21 Conn. L. Rptr. 657] (striking a complaint brought in the name of the parent for injuries sustained by the child.); and those following the reasoning articulated in Wilson v. Zemba, 49 Conn.Sup. 542, 896 A.2d 860 (2004), Superior Court, judicial district of New Haven, Docket No. CV 030484071 (November 16, 2004, Corradino, J.) [ 38 Conn. L. Rptr. 272] (concluding that a court may properly consider a motion to substitute party plaintiff, to correct the misnaming of a parent/adult as the plaintiff, prior to ruling on the subject matter jurisdiction issues raised in a motion to dismiss); Doyon v. Ladson, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 054003728 (January 27, 2006, Shluger, J.) (same); Sockwell v. Farrias-Barrett, Superior Court, judicial district of Waterbury, Docket No. CV 054004892 (October 19, 2005, Matasavage, J.) (same); and Dellavalle v. D.C. Moore School, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 000272084 (October 29, 2004, Frazzini, J.) (same).
Though these two lines of decisions appear to be in conflict with each other, they may, in fact, be reconcilable. The line of decisions which conclude that the court must grant motions to dismiss when an adult is incorrectly named as a plaintiff, rather than a minor-child, do not address whether or not a motion to substitute a party-plaintiff had been filed pursuant to § 52-109. Of course, in the absence of such a motion to substitute a party-plaintiff pursuant to § 52-109, a court would be required, only, to determine the jurisdiction issues presented when an adult/parent is improperly named as a party-plaintiff.
" `The general rule is well established that a child may bring a civil action only by a guardian or next friend, whose responsibility it is to ensure that the interests of the ward are well represented.' Newman v. Newman, 235 Conn. 82, 95, 663 A.2d 980 (1995). `The next friend representing the infant plaintiff is in no sense a party to the action, nor has he any interest in the litigation, but the real party plaintiff in the suit is still the infant.' (Internal quotation marks omitted.) Orsi v. Senatore, 31 Conn.App. 400, 423, 626 A.2d 750 (1993), rev'd on other grounds, 230 Conn. 459, 645 A.2d 986 (1994)." Doyon v Ladson, supra. "The next friend of an infant cannot maintain a suit in his own name, but the suit must be brought in the name of the infant. The process must run in the name of the infant by his next friend and not in the name of the next friend acting for the infant." Botehlo v. Curtis, 28 Conn.Sup. 493, 495-96, 267 A.2d 675 (1970).
In this action, the complaint alleges that the defendants breached their duty of care to Allyson Fotheringhame, the minor child; and that the injuries sustained were by Allyson Fotheringhame, the minor child. Clearly, under the facts asserted in this case, the defendants are on notice that the claims are those of Allyson Fotheringhame. So, the first question for this court to decide is whether or not its inquiry is restricted, solely, to deciding whether or not there is subject matter jurisdiction.
A court does not have subject matter jurisdiction over a claim brought by an adult/parent, in his or her own name, on behalf of a minor child. But, this fact alone (that the lawsuit was incorrectly brought in the name of the adult on behalf of the child) is not determinative of the disputed issues raised by the pending motions in this case. Rather, this court concurs with the reasoning in Wilson v. Zemba that "whether the defendant's motion [to dismiss] should be granted depends on the appropriate application of General Statutes § 52-109 which 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." Wilson v. Zemba, supra at 547. Further, this court agrees that "[t]he legislatures provision of this statutory remedy [in § 52-109] would be completely undermined by any rule requiring the immediate dismissal for lack of subject matter jurisdiction of any action commenced in the name of the wrong person as plaintiff." Dilieto v. County Obstetrics, supra.
Before considering the motion to dismiss, this court concludes that it is appropriate to first determine whether substitution is appropriate under § 52-109. This requires the court to engage in a two-part analysis. First the court must determine whether the incorrect party was named by mistake. And, second, the court must determine whether substitution is required in order to determine the "real matter in dispute."
First, was Ann Fotheringhame listed as party-plaintiff by mistake? "[M]istake is not defined in § 52-109. The court in Dilieto notes that there is no legislative history and proceeds to analyze what the word was taken to mean in analogous common law and statutory provisions meant to ameliorate other harsh pleading dictates at common law . . . [The DiLieto court] infers that the words `through mistake' in § 52-109 mean `an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence that she is the proper person to commence the lawsuit.' " (Citations omitted.) Wilson v. Zemba, supra at 549.
Applying the appropriate and relevant jurisprudence to facts analogous to those in this case, the Wilson. v. Zemba court concluded that "[u]sing the § 52-109 tests as to the first requirement — of course there was a `mistake' . . . The body of the complaint itself . . . refers . . . to the child . . . as `the plaintiff' who was injured" while the summons refers to the father as the plaintiff. (Emphasis added.) Id. at 554. Therefore, this court concludes that Ann Fotheringhame was listed as the party plaintiff, by mistake.
Second, is substitution of the party-plaintiff required in order to determine the real matter in dispute? " `Where substitution is necessary for the determination of the real matter in dispute, the issues of substitution may be addressed under the reasoning that the courts should liberally interpret the rules of practice in any case where it shall be manifest that a strict adherence to them would work injustice.' (Internal quotation marks omitted.) Lupinacci v. Stamford, supra, 48 Conn.Sup. 3. The rules of practice `are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law.' Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn.App. 80, 84, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993). Moreover, `[a]s 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 . . .' (Internal quotation marks omitted.) DiLieto v. County Obstetrics, supra, Superior Court, Docket No. X02 CV 97150435 [ 26 Conn. L. Rptr. 345]. Thus, if the defendant has notice of the conduct that gave rise to the claims and substitution is necessary to determine the real matter in dispute, a motion to substitute may be granted over a motion to dismiss." Doyon v. Ladson, supra.
As previously noted, the defendants are on notice that the injuries claimed are those of Allyson Fotheringhame. Additionally, there is an incongruence between the plaintiff listed in the summons and the "plaintiff, in fact," described in the body of the complaint. This court has already concluded that Ann Fotheringhame was named as plaintiff, in error. Now, this court concludes that in order to determine the real matters in dispute, the court must grant the plaintiff's motion to substitute party-plaintiff.
Because this court concludes that it is appropriate to grant the plaintiff's motion to substitute party-plaintiff, pursuant to § 52-109, it also concludes that it would be inappropriate to grant the defendants' motion to dismiss the First, Second, Fourth and Fifth counts of the complaint.
Regarding the Third Count, the plaintiff's claim against defendant DeFelice, this court concludes that it lacks subject matter jurisdiction to consider it. "A judgment in an action begun and prosecuted against a defendant who is dead when it was begun, is null and void and may be attacked collaterally as was a directly." O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 673 (1933); see also, Noble v. Corkin, 45 Conn.Sup. 330, 332-33 (1998), Superior Court, judicial district of New Haven, Docket No. CV 960392737 (March 20, 1998, Blue, J.); Freeman v. Brown, Superior Court, judicial district of New London, Docket No. CV 4003549 (June 13, 2006, Hurley, JTR); Rodriguez v. Danek, Superior Court, judicial district of New Britain, Docket No. HHBCV 044001947 (September 14, 2005, Shaban, J.); and Santello v. Simmons-Moore, Superior Court, judicial district of New Haven, Docket No. CV 0447023 (October 15, 2003, Blue, J.) [ 35 Conn. L. Rptr. 639].
The plaintiff does not contest the fact that defendant DeFelice died prior to the initiation of this action. Accordingly, this court lacks subject matter jurisdiction over the claim against the deceased defendant, DeFelice. And, the defendants' motion to dismiss the Third Count is granted.
For the foregoing reasons, the court denies the defendants' motion to dismiss the First, Second, Fourth, and Fifth counts; grants the defendant's motion to dismiss the third count; and grants the plaintiff's motion to substitute the party-plaintiff.