Opinion
Nos. FST CV 08 5005955, FSTCV085013126S
May 24, 2011
MEMORANDUM OF DECISION
These actions came to the court on the plaintiffs' motion to accept and the defendants' objections to the report of attorney trial referee John R. Downey ("ATR"). P.B. § 19-14. A brief chronology of events is necessary to place the present motions to dismiss in perspective. Both cases were tried between August 13 and 17, 2010. On August 24, 2010 these plaintiffs filed a "motion to amend pleadings to correct misnomers" seeking to amend the pleadings to properly and accurately reflect their names as (i) "Herb Willigan d./b./a. Herb Willigan Electrical, and (ii) Brian Greco d./b./a. Greco Construction" claiming that the manner in which the plaintiffs' names were stated in the respective writs of summons and complaint constitutes a misnomer and is therefore correctable as a circumstantial defect under G.S. § 52-123. With extensions granted by the court the ATR filed his memorandum of decision on October 15, 2010. The defendants filed their "objection to acceptance of ATR report" on January 24, 2011. On February 24, 2011 the defendants filed a motion to dismiss in each case alleging that the court lacks subject matter jurisdiction because these plaintiffs, preceding solely under their trade names, do not exist as legal entities. On March 24, 2011 the defendants filed their objection to plaintiffs' motion to amend/correct. Both this motion and the related objection were assigned for oral argument before Judge Mintz on April 11, 2011. The argument never went forward. This court must now adjudicate the motion to amend/correct, the objection thereto and the motion to dismiss in each case.
It is truly wasteful of judicial resources and contrary to the spirit of P.B. § 10-6 for the defendants to have waited until after receiving an adverse recommendation from the ATR before filing their motions to dismiss.
These cases were consolidated with docket numbers 085005953 and 085005954 which are not afflicted with the same infirmities. Therefore, in the interest of fostering simplicity and expediting orderly disposition the court will exercise its discretion and sever these cases from the remaining two. Alpha Crane Service, Inc. v. Capitol Crane Company, 6 Conn.App. 60, 68 (1986).
While the plaintiffs' motions predate the motion to dismiss, "whenever the absence of subject matter jurisdiction is brought to the notice of the court . . . cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction," and this includes a motion to amend. Federal Deposit Insurance Corp. v. Peabody, 239 Conn. 93, 99-100 (1996). Correspondingly, the plaintiff has the burden of proving subject matter jurisdiction, whenever and however raised, and even though it is not raised in a timely manner. Fink v. Golenbock, 238 Conn. 183, 199, n. 13 (1996). No evidentiary hearing was necessary because the issue presented by the motion to dismiss is a straight question of law. Standard Tallow Corp. v. Jowdy, 190 Conn. 48 (1983).
Plaintiffs' labeling of this discrepancy as a misnomer is based on the assertion that describing these plaintiffs by their trade names, "Herb Willigan Electrical" and "Greco Construction" in the writ of summons are mere inaccuracies which are nevertheless adequate to identify the individual plaintiffs. The court notes that in the Willigan case, unlike the writ of summons, the complaint refers both to "Herb Willigan" and "Herb Willigan Electrical" as plaintiff. In the Greco case, the plaintiff is referred to throughout as "Greco Construction" both in the writ of summons and the complaint without reference to Greco as an individual.
Gen. Stat. § 52-45a and P.B. § 8-1 which govern commencement of actions require that the writ of summons "describe the parties" whereas P.B. § 10-20 which governs the contents of the complaint makes no reference to the parties. "Describing the parties presumably means using their real names." Buxton v. Ullman, 147 Conn. 48, 59-60 (1959). P.B. § 7-4A also provides as follows: "Except as otherwise required by statute, every case filed in the superior court shall be identified as existing in the records of the court by docket number and by the names of the parties, and this information shall be available to the public." (Emphasis added.) From experience we know that pursuant to P.B. § 7-1 and 2 the clerk of the court keeps a record of all pending cases by the names which appear in the writ of summons, not by names which are recited in the complaint." At the same time the parties' correct names even though recited in the complaint do not confer jurisdiction on the court.
"To obviate any possibility that the parties and the issues raised are fictitious and that the jurisdiction of the court is being invoked to decide moot questions, a plaintiff who desires to use a name other than his own should, before the case is presented in court, acquaint the court of his desires, establish the fact that the parties and issues are real although the names used are fictitious, and secure the court's consent, as was done in these cases. The privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest." Buxton v. Ullman, supra, 147 Conn. at 59-60.
Based on this, what gives threshold jurisdictional life to a case is not what is stated in the complaint but what is stated in the writ of summons which is served on the defendant. The court also observes that the ATR identified these plaintiffs in the caption of his memorandum of decision as individuals, viz: "Brian Greco d/b/a Greco Construction" and "Herb Willigan d/b/a Herb Willigan Electric." That was not a correct designation of the parties because it included individual names of persons whose names do not appear in the writ of summons and who are not parties to the action.
In their objection to the motion to dismiss the plaintiffs urge the court to apply a three-part test in determining whether the omission should be deemed a misnomer or a jurisdictional defect.
"[We] consider[ed] three factors to determine whether the error was a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; (3) whether the proper defendant was in any way misled to its prejudice." Andover Limited Partnership v. Board of Tax Review, 232 Conn. 392, 397 (1995).
This court does not agree that this test is applicable to plaintiffs simply because none of the factors cited by the court have any logical application to a plaintiff.
The plaintiffs have offered Presence Studios Westport v. Freelife International, LLC, 2004 WL 3090650 (2004) as being "directly on point." While the facts may be similar, the decision has no precedential value in view of the development of our appellate case law since 2004.
In 2005 our Appellate Court decided two cases which inform the resolution of the present case. In November of 2005 the court decided Rockrimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410. In that case both the plaintiff and the defendant were incorrectly described in the writ of summons. While devoting most of the opinion to the error in the defendant's name the court found a circumstantial defect in the fact that the action was brought in an incorrect corporate name. The court said "when the correct party is designated in a way that may be inaccurate, but which is still sufficient for identification purposes, the misdesignation is a misnomer." Id. at 414.
In February of the same year the court decided American Wholesale Lender v. Pagano, 87 Conn.App. 474. In this case a corporate entity named "Countrywide Home Loans, Inc." commenced a foreclosure action in the name of "America's Wholesale Lender." The writ of summons did not list Countrywide Home Loans, Inc. as a party nor did it include America's Wholesale Lender as a d/b/a tradename in addition to the corporate entity. In rejecting the plaintiff's argument that such a designation was a misnomer and therefore a circumstantial defect under § 52-123, the court held that "because the trade name of a legal entity does not have separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court." Id. at 477. The court expressly declined "to extend the use of section 52-123 in this manner to a plaintiff that has used a fictitious name for itself when commencing an action." Id. at 478.
The plaintiffs also rely on Dyck O'Neal, Inc. v. Wynne, 56 Conn.App. 161 (1999). In this case the court permitted substitution of P. Dyck O'Neil, Inc. for the individual, Dyck O'Neal. The court deemed this to be a misnomer and therefore a circumstantial defect under § 52-123, stating "the change did not affect the identity of the party sought to be described" and that "the designation of Dyck O'Neal was inaccurate." The Pagano court distinguished its case from Dyck O'Neil, Inc. on two grounds. "First at no time was the plaintiff's true identity concealed; rather, the omission of its designation amounted to an incorrect description of the plaintiff. Furthermore, the record in that case suggested the omission of the plaintiff's designation was a typographical error in the court's judgment file, not an action necessarily attributable to the plaintiff." Id. at 478 n. 5.
In the present case no claim has been made nor could it have been, that the plaintiffs' individual names were omitted because of a typographical or scrivener's error. The question therefore remains as to whether the test that should be applied is whether the plaintiffs' true identity was concealed by the manner in which the plaintiffs' names were stated. The answer must be in the negative because this test is only one consideration for the court to weigh and the test has never been applied at the appellate level to a plaintiff.
This court gleans yet another meaningful distinction between the two cases. In Dyck O'Neil, Inc. both the individual and the corporate entity were in existence at the time the action was commenced whereas in the present case neither Herb Willigan Electrical or Greco Construction were entities existing at the time the suits were instituted nor at any time during their pendency.
The court agrees with the plaintiffs that the defendants have suffered no prejudice as a result of the commencement and prosecution of these actions under their trade names. The court disagrees that these trade names confer subject matter jurisdiction on the court. In response to the same argument, the Pagano court concluded that "a lack of subject matter jurisdiction requires dismissal, regardless of whether prejudice exists." Id. at 480. This conclusion necessarily flows from the fact that a trade name is not a legal entity clothed with power to invoke the jurisdiction of the court. Accord, Century 21 Access America v. McGregor, 39 Conn. Conn. L. Rptr. 639 (2005).
The motion to dismiss in each case is granted and therefore the plaintiffs' motion to amend/correct misnomers must be denied. Andover Limited Partnership v. Board of Tax Review, 232 Conn. at 397.