Opinion
CV156029875S
01-13-2016
McCue Mortgage Co. v. New London County Mutual Insurance Co
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO ADD PARTY PLAINTIFF, #105.00
PETER EMMETT WIESE, JUDGE.
I
PROCEDURAL HISTORY
On August 13, 2015, the plaintiff, McCue Mortgage Company (McCue) filed an amended complaint against the defendant, New London County Mutual Insurance Company (New London). The plaintiff alleges the following facts. The Connecticut Housing Finance Authority (CHFA) holds a mortgage on a property located in Ansonia, Connecticut. The mortgage and mortgage note were originated by McCue, but was subsequently assigned to the CHFA. McCue retains certain duties and the mortgage " is serviced on behalf of CHFA by McCue . . ." The property owner, Nicole Echevarria, holds a property insurance policy from New London. After the property was damaged by a fire in 2013, New London denied coverage to Echevarria. As the mortgagee of the property, McCue initiated the present action in order to obtain coverage from New London. Count one of the amended complaint alleges a breach of contract claim against New London for denying insurance coverage. In count two, McCue seeks a " declaration of the relative rights and duties of the relations . . . including a declaration that the Mortgagee [CHFA and McCue] is entitled to coverage under the insurance policy issued by [New London] due to the damage to the Property."
Echevarria is not a party in this action.
On August 19, 2015, the plaintiff filed a motion to add party plaintiff (105.00) and memorandum of law in support of the motion (106.00), which included an affidavit from Katherine McCue Scierka (Scierka), dated August 18, 2015, in response to the defendant's motion to dismiss (101.00), which had been filed on July 20, 2015. On September 8, 2015, the defendant filed an objection and memorandum of law in opposition to the motion to add party plaintiff (109.00). The plaintiff filed a reply memorandum (111.00) on September 25, 2015, and a second affidavit from Scierka (112.00). On October 28, 2015, the defendant filed a sur-reply memorandum in support of its objection to the motion to add party plaintiff (115.00). The parties presented oral argument on November 2, 2015, at which time the defendant objected to various paragraphs in the plaintiff's affidavits.
The court will address the defendant's motion to dismiss in a separate decision.
The defendant's objections to specific paragraphs in the affidavits were not used nor were dispositive in the court's analysis in determining the present issue of the motion to add party plaintiff.
II
DISCUSSION
A. Motion to Dismiss
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " Where a motion to dismiss is filed on the ground that the plaintiff lacks standing, and the plaintiff quickly follows by filing a motion to substitute the correct party, the motion to substitute may be heard while the motion to dismiss is pending, notwithstanding the general rule that the subject matter jurisdictional issues raised by a motion to dismiss must be dealt with prior to other motions." J. Kaye & W. Effron, 2 Connecticut Practice Series: Civil Practice Forms (4th Ed. 2004) § 106.5, p. 213; see also Rana v. Terdjanian, 136 Conn.App. 99, 111, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).
" [I]t is well within the authority of a court to permit a substitution of plaintiffs in lieu of dismissing an action provided that the court determines that the conditions set forth in § 52-109 have been met. We also agree with the reasoning of a number of trial court decisions that have considered the same jurisdictional conundrum now before us that if § 52-109 is to have the ameliorative purpose for which it was intended, then even assuming that the specter of subject matter jurisdiction rears its head, the statute is meant to give the trial courts jurisdiction for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs." (Internal quotation marks omitted.) Rana v. Terdjanian, supra, 136 Conn.App. 111. See also, Scelza v. Onore, Superior Court, judicial district of Hartford, Docket No. CV-02-0821526-S (April 17, 2007, Satter, J.T.R.) (43 Conn. L. Rptr. 724).
B. Motion to Add Party Plaintiff
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." Our Supreme Court has provided guidance in order to determine whether a plaintiff commenced an action through mistake: " Under § 52-109, substitution is permitted only when the trial court determines that the action was commenced in the name of the wrong plaintiff 'through mistake, ' which properly has been interpreted to 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 [action].'" DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 151, 998 A.2d 730 (2010). " [O]nce such a determination is made . . . the substituted party is let in to carry on a pending suit, and is not regarded as commencing a new one. After he is substituted he is . . . treated and regarded for most purposes just as if he had commenced the suit originally. The writ, the complaint, the service of process, attachment made, bonds given, the entry of the case in court, the pleadings if need be, in short all things done in the case by or in favor of the original plaintiff . . . remain for the benefit of the plaintiff who succeeds him, as if done by and for him originally and just as if no change of parties had been made. So far as the defendant is concerned, the same suit upon the same cause of action, under the same complaint and pleadings substantially in most cases, goes forward to its final and legitimate conclusion as if no change had been made." (Internal quotation marks omitted.) Id., 152.
See Practice Book § 9-20 (" [w]hen any action has been commenced in the name of the wrong person as plaintiff, the judicial authority 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").
Connecticut courts have thoroughly discussed the definition and applicability of " mistake" under § 52-109. See, e.g., Youngman v. Schiavone, 157 Conn.App. 55, 68, n.9, 115 A.3d 516 (2015) (" [w]e are mindful, however, that the same sort of mistake at issue here, namely, a mistake of law, has been considered a good faith, non-negligent mistake by our courts in other cases"). Citing DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. 151, and Rana v. Terdjanian, supra, 136 Conn.App. 99, the court stated that " [i]n both DiLieto and Rana, the trial court determined, based on the facts presented to it, that the original plaintiffs in those cases were not negligent in commencing their actions in their individual names, the court having been satisfied that there was a reasonable basis for the plaintiffs' belief that they were the proper parties." (Emphasis in original.) Id., 69 n.9. The Youngman court distinguished its decision by finding that the trial court did not abuse its discretion because " the plaintiffs could not, and perhaps more specifically, did not, demonstrate to the trial court that their belief that they were the proper parties was a reasonable one, held in good faith, and not the result of their own negligence in failing to name the proper party." Id., 68. See also, Pacific Ins. Co. v. Champion Steel, LLC, Superior Court, judicial district of Hartford, Docket No. CV-13-6041922-S, (March 17, 2014, Wiese, J.) (57 Conn. L. Rptr. 806), cert. granted, Connecticut Supreme Court, Docket No. SC 19402 (filed April 3, 2014), 19403 (filed May 8, 2014) (court denied motion to substitute because plaintiff failed to argue nor demonstrate that it commenced action as a mistake under § 52-109).
C. Parties' Arguments
In its memoranda of support, McCue argues that the motion to add the CHFA as a plaintiff should be granted because commencement of the suit without naming the CHFA was " an honest mistake made in good faith" under § 52-109. In its memoranda objecting to the motion, New London asserts that the motion should be denied because the plaintiff knew that the CHFA was the appropriate party to bring the action, but failed to do so, thus, the plaintiff's own negligence precludes the applicability of § 52-109.
D. Analysis
" [Under § 52-109] [t]he two conditions that must be met to invoke the statutory remedy of substitution . . . 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.) Lupinacci v. Stamford, 48 Conn.Supp. 1, 6, 823 A.2d 456 (2002). Under the first condition, a trial court can determine that an action was commenced by mistake and not negligence, by finding " a reasonable basis for the plaintiffs' belief that they were the proper parties" based on the facts presented. Youngman v. Schiavone, 157 Conn.App. 55, 69, n.9, 115 A.3d 516 (2015). In the present action, the plaintiff's August 18, 2015 affidavit asserts that they " commenced this action honestly believing that it was the proper plaintiff to do so." The affidavit also claims that " McCue regularly pursues insurance claims on behalf of the CHFA. Additionally, the affidavits and complaint contain sufficient factual allegations that demonstrate an ongoing history between the parties regarding the insurance claim on the property. Based on the alleged facts presented to the court by the plaintiff, there exists a reasonable basis for the plaintiff's belief that they were the proper party, and had commenced this action as an honest, non-negligent mistake; therefore, the first condition of § 52-109 is met.
" [The second] 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.) Lupinacci v. Stamford, supra, 48 Conn.Supp. 7. " The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn.App. 10, 15-16, 971 A.2d 90 (2009). In the present matter, the CHFA is the real party in interest because it is the alleged holder of the mortgage as stated in the complaint, and is the named mortgagee in the certificate of insurance; therefore, the CHFA has standing to allege a breach of contract claim against the defendant. Accordingly, the plaintiff has met the two requirements of § 52-109 to add the CHFA as a party plaintiff. The court grants the plaintiff's motion to add party plaintiff.
The court notes that while the plaintiff has satisfied the statutory requirements of § 52-109, the plaintiff also maintains the position that it is the right party in this action.
CONCLUSION
For the foregoing reasons, the court grants the plaintiff's motion to add the CHFA as a plaintiff in the matter.
SO ORDERED.