Opinion
No. CV 99 0360617
November 30, 2004
MEMORANDUM OF DECISION RE (#123) PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND/OR SUBSTITUTE PROPER PLAINTIFF
The plaintiff, Presence Studios Westport (Presence Studios) is a sole proprietorship engaged in the business of developing studio productions and providing technical support and services to individuals and businesses.
The plaintiff commenced this action against the defendant, Freelife International, LLC, in seven counts all arising from the alleged nonpayment by the defendant of a portion of a bill for services purportedly rendered to it by the plaintiff.
Presence Studios, a sole proprietorship, has moved to amend the complaint and/or to substitute as the proper plaintiff "Jon Russell d/b/a Presence Studios Westport" for "Presence Studios Westport," which, it maintains, is the proper way to bring the action in the name of the individual who is the sole proprietor.
The defendant, Freelife, objects to the amendment. It argues that the court lacks subject mater jurisdiction to allow the amendment because the original action was brought in the name of a party that was not in existence as a viable legal entity.
It further argues that the court cannot make the requisite findings to allow a substitution of plaintiffs.
Freelife argues that the court lacks subject matter jurisdiction to allow Presence Studios to either make the substitution in its designation as the plaintiff or to amend the complaint to correct its name. It argues that the court must first address the issue of subject matter jurisdiction before it can decide either to allow the substitution or the amendment.
"[A] motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). The defendant has not filed a motion to dismiss, but has raised subject matter jurisdiction in his objection to the pending motion. "[O]nce the question of lack of jurisdiction of a court is raised, [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.) Esposito v. Specyalski, 268 Conn. 336, 348 (2004).
"Once the question of subject matter jurisdiction has been raised, cognizance of it must [ordinarily] 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." Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6 (2003).
"[H]owever, where substitution [or an amendment] is necessary for the determination of the real matter in dispute, the issues of substitution [or amendment] 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." Lupinacci v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV99 0172376 (August 7, 2002, Lewis, J.T.R.) ( 32 Conn. L. Rptr. 672); see also Fairfax Properties, Inc. v. Lyons, 72 Conn.App. 426, 437 n. 12, 806 A.2d 535 (2002). For that reason, the court finds it proper to address the merits of Presence Studio's motion to substitute/amend despite the subject matter jurisdiction claim made by Freelife. See Nygren v. Steier, Superior Court, judicial district of Waterbury, Docket No. CV00 0156706 (January 10, 2001, Doherty, J.) ( 28 Conn. L. Rptr. 699).
Presence Studios moves to substitute Jon Russell d/b/a Presence Studios Westport for the currently named plaintiff, Presence Studios Westport or, in the alternative, to amend the complaint to make the change. General Statutes § 52-109 provides that "[w]hen 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." "This statute allows the court to substitute one person or entity, the real party in interest, in place of another person or entity, who commenced the action through mistake. The plain language of the statute suggests that what is contemplated is that an entirely different person or entity will be able to enter the action as a plaintiff through the application of this statute . . . The statute does not say that it applies when the plaintiff merely describes its own name inaccurately. Instead, it contemplates a situation where the entirely wrong person institutes a cause of action." (Emphasis in original.) BKM Floorcovering v. Orlando Annulli Sons, Superior Court, judicial district of Hartford, Docket No. CV 980576713 (May 2, 2001, Berger, J.) ( 29 Conn. L. Rptr. 657).
See also Practice Book § 9-20.
In this matter, the plaintiff does not claim that the action was brought in the name of an entirely wrong person, but that it has committed a misnomer, by misstating its name. General Statutes § 52-123 provides that "[n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." This statute, not § 52-109, "should be applied when . . . the plaintiff's error does not result in the naming of an entirely different party, but instead involves merely an inaccurate designation of the name of the correct party, that is, a misnomer." BKM Floorcovering v. Orlando Annulli Sons, supra, Superior Court, Docket No. CV 98 0576713.
"A misnomer must be distinguished from a case in which [a party] has misconstrued the identity of [the other party], rather than the legal nature of his existence. 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." Cherry Hill Construction Co. v. Gateway Plaza, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 03 0081364 (Feb. 5, 2004, Scholl, J.).
A three-part test is used to determine if an error is merely a misnomer and, therefore a circumstantial defect under § 52-123. The factors to be considered are: "(1) whether the . . . defendant had actual notice of the [proper plaintiff's] institution of the action; (2) whether the . . . defendant knew or should have known that [the proper plaintiff] was the intended [plaintiff] in the action; and (3) whether the . . . defendant was in any way misled to its prejudice." Dime Savings Bank of Wallingford v. Arpaia, 55 Conn.App. 180, 185 n. 2 (1999).
It is important to note that the court finds no evidence in the record, and that no claim has been raised, that Freelife did not have notice that this action was being instituted by the proper plaintiff or that Freelife did not know who was the intended plaintiff. Nor is there any claim that Freelife was in any way misled to its prejudice due to the fact that the plaintiff was originally designated as Presence Studios Westport rather than Jon Russell d/b/a Presence Studios Westport.
Freelife argues that the complaint cannot be cured by either substitution or by amendment because the original action was brought in the name of a party that was not in existence as a viable legal entity. "§ 52-123 is [however] applicable where the plaintiff's original error results in the naming of a legal nonentity as a party." BKM Floorcovering v. Orlando Annulli Sons, supra, Superior Court, Docket No. CV 98 0576713.
"It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024 (1985).
See also PAS Associates v. Twin Laboratories, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV99 0174428 (January 4, 2000, Mintz, J.); ITT Semiconductors v. Matheson Gas Products, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV89 029553 (October 2, 1991, Maiocco, J.) ( 5 Conn. L. Rptr. 80, 6 C.S.C.R. 947); Pack v. Burns, 212 Conn. 381, 562 A.2d 24 (1989), where amendments to pleadings were allowed although the actions were originally brought by nonentities. The defects were found to be misnomers or circumstantial defects.
It is unrefuted in the pleadings that the plaintiff was in existence at the time the action was commenced. It misnamed itself in the complaint to be "Presence Studios Westport" rather than "Jon Russell d/b/a Presence Studios Westport."
"Whether the court considers this a motion to amend pursuant to Practice Book § 10-60 and General Statutes § 52-123 or a motion to substitute pursuant to Practice Book § 9-20 and General Statutes § 52-109, the court finds that the motion should be granted to correct what the [p]laintiff claims was a misnomer." Cherry Hill Construction Co. v. Gateway Plaza, supra, Superior Court, Docket No. CV 03 0081364.
This section permits the court to exercise discretion to allow amendments to pleadings.
Having considered the facts surrounding the incorrect self-identification by the plaintiff in this case, the court finds that all three criteria set forth in Sec. 52-123, C.G.S. have been met and, for that reason, the court grants this motion as an amendment, rather than by the substitution of a party, thereby dispensing with potential subject matter jurisdiction issues.
"An error under § 52-123 does not implicate the court's subject matter jurisdiction." BKM Floorcovering v. Orlando Annulli Sons, supra, Superior Court, Docket No. CV 98 0576713.
By the Court,
Joseph W. Doherty, Judge