Opinion
No. CV 07-5007014S
March 11, 2008
MEMORANDUM OF DECISION RE DISMISS (MOTION 104)
The defendants have filed this Motion to Dismiss claiming that the Trustee of the Bankruptcy Estate of Raymond Massi and Raymond Massi, personally lack standing to bring this claim of legal malpractice.
The parties have agreed that Raymond Massi, personally does lack standing, therefore the Motion to Dismiss as to him is granted by agreement.
The question before the court is whether when Raymond Massi filed bankruptcy this claim of legal malpractice became an asset of the estate.
By way of background, Statley Dream Homes, LLC filed a law suit against Raymond Massi d/b/a Comfort Systems, d/b/a Comfort Systems Corporation, and/or d/b/a Comfort System, LLC and Comfort Systems Southbury, LLC. All defendants in that case were defaulted and judgment was entered against them. Therein lies the claim for legal malpractice (without this court commenting on the viability of such claim).
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "[A] motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction. Practice Book § 10-31(a) provides in relevant part: `[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter' . . ." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[O]nce the question of lack of jurisdiction of a court is raised, [however, it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). The question then is when Mr. Massi was sued as "doing business as" was that claim against him personally.
"A corporation is a person although it is not a natural person." M. Ford, Connecticut Corporation Law Practice (2d Ed. 2000) § 2.02, p. 2-10. 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." (Internal quotation marks omitted.) Pinkerton's, Inc. v. Superior Court, 49 Cal.App.4th 1342, 1348, 57 Cal.Rptr.2d 356 (1996), quoting Providence Washington Ins. Co. v. Valley Forge Ins. Co., 42 Cal.App.4th 1194, 1200, 50 Cal.Rptr.2d 192 (1996); see Duval v. Midwest Auto City, Inc., 425 F.Sup. 1381, 1387 (D.Neb. 1977), aff'd, 578 F.2d 721 (8th Cir. 1978); Wood Mfg. Co. v. Schultz, 613 F.Sup. 878, 884 n. 7 (W.D.Ark. 1985); Jaffe v. Nocera, 493 A.2d 1003, 1008 (D.C. 1985); Southern Ins. Co. v. Consumer Ins. Agency, Inc. 442 F.Sup. 30, 31 (E.D.La. 1977); Patterson v. VM Auto Body, 63 Ohio St.3d 573, 575, 589 N.E.2d 1306 (1992); Carlson v. Doekson Gross, Inc., 372 N.W.2d 902, 905 (N.D. 1985); see also American Express Travel Related Services Co. v. Berlye, 202 Ga.App. 358, 360, 414 S.E.2d 499 (1991), cert. denied, 202 Ga. 905 (1992) ("The use of d/b/a or `doing business as' to associate a tradename with the corporation using it does not create a legal entity separate from the corporation but is merely descriptive of the corporation"). Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000). See also Scrivani v. Vallombroso, 99 Conn.App. 645, 916 A.2d 827 (2007).
In footnote 17 of Edmands v. Cuno, 277 Conn. 425, 892 A.2d 938 (2006) the court stated: "The plaintiffs have neither asserted nor provided us with any authority that the designation of Edmands as an individual "doing business as" Eastern precludes Edmands' personal liability. Our research suggests a contrary rule. See Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000) ("[i]t 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 [doing business as] . . . is merely descriptive of the person or corporation who does business under some other name" [internal quotation marks omitted]) and cases cited therein; see also Southern Ins. Co. v. Consumer Ins. Agency, Inc., 442 F.Sup. 30, 31-32 (1977) (noting that, consistent with common meaning of term and case law of other jurisdictions, under Texas law, "when the phrase `doing business as' follows a person's name, it signifies that the individual is the owner and operator of the business whose trade name follows his, and makes him personally liable for the torts and contracts of the business").
Therefore, the Motion to Dismiss as to the Trustee for Bankruptcy is denied.