Opinion
No. CV 03-0081364
February 5, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS AND TO DISCHARGE MECHANIC'S LIEN (#104) AND PLAINTIFF'S MOTION TO SUBSTITUTE (#105)
This is an action commenced by the Plaintiff, Cherry Hill Construction Company, Inc., seeking foreclosure of a mechanic's lien placed on the Defendant's property. The complaint alleges that the Plaintiff furnished materials and labor in the construction of improvements to property in Manchester, Connecticut, owned by the Defendant, Gateway Plaza, LLC, pursuant to an agreement with Banks Building Company, LLC. The Plaintiff claims that it commenced work on January 22, 2002 and continued working through November 29, 2002 and that to date it has not been paid for such work.
The Defendant, Gateway Plaza, LLC, has moved to dismiss all claims of Cherry Hill Construction Company, Inc. for lack of subject matter jurisdiction claiming that there is not now, nor has there ever been, a corporation called Cherry Hill Construction Company, Inc. and accordingly the Plaintiff has no standing. The Defendant claims that a corporation called "Cherry Hill Const. Inc." was dissolved by the Secretary of State in 1985 for failure to file two successive reports. In response to the Defendant's motion, the Plaintiff has moved to substitute Cherry Hill Const. Inc. as the Plaintiff because the actual corporate name of the Plaintiff was incorrectly stated in the complaint. The Plaintiff claims that the naming of the Plaintiff as Cherry Hill Construction Company, Inc. was a misnomer and should not defeat its standing in this matter and pursuant to General Statutes § 52-123 the name of the Plaintiff can be corrected pursuant to a motion to substitute. General Statutes § 52-123 provides: "No 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."
Oral argument on the motions was held on October 14, 2003. At that tine the court also heard the testimony of Ivan Sachs, the president of Cherry Hill Const. Inc. From the evidence presented the court finds that Cherry Hill Const. Inc. was incorporated in 1973. The incorporators were Ivan Sachs, Rita Sachs, and Gerald Ryan. The work which is the subject of the mechanic's lien was performed pursuant to a January 22, 2002 contract between Banks Building Company, LLC and "Cherry Hill Construction." Mr. Sachs stated that they always did business as Cherry Hill or Cherry Hill Construction, Inc. without any problem. As of September 15, 2003, the Secretary of State had reinstated Cherry Hill Const. Inc. and certified that it is incorporated under the laws of Connecticut.
The Plaintiff cites the decisions in ITT Semiconductors v. Matheson Gas Products, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV89 029553, 5 Conn. L. Rptr. 80 (October 2, 1991, Maiocco, J.) and PAS Associates v. Twin Laboratories, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 990174428 (January 4, 2000, Mintz, J.) in support of its position. In ITT Semiconductors, the plaintiff was identified as "ITT Semiconductors, a division of ITT Corporation." There the defendants moved to dismiss the lawsuit claiming the court lacked subject matter jurisdiction because a division is not a legal entity, and thus lacks capacity to sue, and therefor has no standing, and consequently the court lacked subject matter jurisdiction. In response to the motion, the plaintiff requested the court's permission to amend the caption of the complaint, from "ITT Semiconductors, a Division of ITT Corporation," to "ITT Corporation, Doing Business as ITT Semiconductors." The court denied the motion to dismiss and allowed the amendment. The court stated: "Nevertheless: `The courts may allow amendments as to the parties to an action to conform with the facts as long as the cause of action is not changed . . . and no prejudice or disadvantage is suffered by the opposing side; and it has been held in error for the court to disallow an amendment in such case. Such amendment should not be allowed, however, where it effects an entire change of parties, or introduces a new cause of action to the prejudice of the opposing party, or causes a fraudulent or unjust result or deprives the opposite party of a valuable right. 67A C.J.S. Parties, 170.'"
In PAS Associates v. Twin Laboratories, Inc. the defendant moved to dismiss the action claiming that the court lacked subject matter jurisdiction since the suit was improperly initiated under a trade name. The court denied the motion relying on ITT Semiconductors v. Matheson Gas Products and allowed the filing of an amended complaint naming the plaintiff in his own name as plaintiff.
In Nygren v. Steier, Superior Court, judicial district of Waterbury, Docket No. CV00 0156706, 28 Conn. L. Rptr. 699 (January 10, 2001, Doherty, J.) the court considered a motion to substitute a party made pursuant to Practice Book § 9-20 prior to its determination of a motion to dismiss and held that it had jurisdiction to determine whether the action should be saved from dismissal by the substitution of the plaintiff. The court noted that several Superior Courts have ruled on a motion to substitute a plaintiff while a motion to dismiss challenging the court's subject matter jurisdiction was pending. These courts have held that they have subject matter jurisdiction for the limited purpose of deciding the motion to substitute. The court in Nygren also noted that the Appellate Courts have upheld the substitution of a party plaintiff to cure an original party's lack of standing.
Practice Book § 9-20 provides: "When 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."
Later in Lupannacci v. Stamford, 48 Conn. Sup. 1, 4 (2002), the court allowed the substitution of a plaintiff while a motion to dismiss claiming lack of jurisdiction was pending. The court noted that a series of more recent decisions of the Appellate Court "have established that the granting of a motion to substitute a party plaintiff may save a case from dismissal despite the general rule that courts must decide jurisdictional issues first." Subsequent to Lupannacci, the Appellate Court in Fairfax Properties, Inc. v. Lyons, 72 Conn. App. 426, 437 n. 12 (2002), continued this trend when it noted: "Usually, when the issue of subject matter jurisdiction arises, it must be determined before any other matters can be considered and rulings made thereon. Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Baldwin Piano Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183 (1982); Kohn Display Woodworking Co. v. Paragon Paint Varnish Corp., 166 Conn. 446, 448, 352 A.2d 301 (1974). There is decisional authority, however, that allows an amendment to a complaint to add an alternative basis for subject matter jurisdiction after jurisdiction has been questioned. LaBow v. LaBow, 171 Conn. 433, 370 A.2d 990 (1976); see also DiLieto v. County Obstetrics Gynecology Group, Superior Court, judicial district of Waterbury, Docket No. 150435 (January 31, 2000) ( 26 Conn. L. Rptr. 345); see also General Statutes § 52-109; Practice Book § 9-20. In Federal Deposit Ins. Corp., the third-party plaintiff wanted to amend its complaint in an attempt to make it fit `within the parameters of the limited waiver of the state's sovereign immunity . . .' Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 100. In the current case, the movants desired to be joined as parties plaintiff and did not seek to amend the allegations of the complaint." More recently in Cardi Materials v. CT Landscaping Bruzzi Corp., 77 Conn. App. 578, 580 n. 2 (2003), the Appellate Court held that the trial court improperly rendered judgment in favor of the plaintiff in an action on a contract where the plaintiff was not a party to the contract and the trial court should have dismissed the case for lack of subject matter jurisdiction because of the plaintiff's lack of standing. But there the court noted that the plaintiff did not move that the proper party be substituted as plaintiff but that such a substitution may have been permissible pursuant to General Statutes § 52-109 and Practice Book § 9-20.
General Statutes § 52-109 provides that: "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."
Therefore the court here may consider the Motion to Substitute prior to consideration of the Motion to Dismiss.
The Defendant opposes the Motion to Substitute because it claims that the Plaintiff has not proven that the action was commenced in the name of the wrong person by mistake as required by the statutes and Practice Book. However it is apparent to the court that the action was not commenced by the wrong person but that the name of the Plaintiff was incorrectly stated, there was simply a misnomer. There is very little difference between the names "Cherry Hill Construction Company, Inc." and "Cherry Hill Const. Inc." This is what the court in Lussier v. Department Of Transportation, 228 Conn. 343, 350-51 (1994) characterized as a "misnomer." There the Court stated: "This case presents a classic example of a common defect in process involving the designation of the defendant. The plaintiff argues that the name of the defendant was merely stated incorrectly while the department maintains that the plaintiff correctly stated the name of the wrong person or entity as the defendant. These two different categories of defects, though easily confused, are readily distinguished. The first, involving a defendant designated by an incorrect name, is referred to as a `misnomer.' It is a circumstantial defect anticipated by General Statutes 52-123 that can be cured by amendment. A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant, 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. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party. The issue, then, is `whether a misnomer is a designation of the right party in a way which may be inaccurate but which is still sufficient for identification purposes or whether the wrong person has been designated as a party.' 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) 105e, p. 433. Whether the plaintiff has misconstrued the identity of his or her intended defendant or merely the intended defendant's legal name or nature is a question that may be answered only after all the circumstances have been examined. See World Fire Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 643, 136 A. 681 (1927)."
In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 399-400 (1995) the sole issue was whether in a tax assessment appeal the plaintiff's designation of the board of tax review of West Hartford instead of the town of West Hartford as the defendant deprived the trial court of subject matter jurisdiction. There the Court stated; "We, therefore, have refused to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiff's cause of action if the pleadings were technically imperfect. As Professor Edward L. Stephenson points out, remedial statutes such as § 52-123 were intended to soften the otherwise harsh consequences of strict construction under the common law: `Over-technical formal requirements have ever been a problem of the common law, leading [legislative bodies] at periodic intervals to enact statutes . . . which, in substance, told the courts to be reasonable in their search for technical perfection.' 1 E. Stephenson, supra, § 35, p. 137. In sum, we decline to interpret § 52-123 in so strict a manner as to deny the plaintiff the pursuit of its complaint. See, e.g., Hartford National Bank Trust Co. v. Tucker, 178 Conn. 472, 477-78, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980) (court should avoid interpreting rules and statutes so strictly that litigant is denied pursuit of its complaint due to mere circumstantial defects); Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974) (court does not favor termination of proceedings without determination on merits); Greco v. Keenan, 115 Conn. 704, 705, 161 A. 100 (1932) (same) . . . We conclude that the naming of the board instead of the town was a circumstantial error, mistake or defect under § 52-123. We further conclude that because the language of § 52-123 — `[n]o writ . . . shall be . . . set aside . . . for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court' — is mandatory rather than directory, the plaintiff was entitled to correct its error by amendment."
Here the Plaintiffs seek to substitute Cherry Hill Const. Inc. as the named Plaintiff. 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 Practice Book § 9-20 and General Statutes § 52-109, it appears that the motion should be granted to correct what the Plaintiff claims was a misnomer. Allowing the amendment to change the name of the Plaintiff from the "Cherry Hill Construction Company, Inc." to "Cherry Hill Const. Inc." is therefore appropriate.
Practice Book § 10-60 provides: "a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner: (1) By order of judicial authority; or (2) By written consent of the adverse party; or (3) By filing a request for leave to file such amendment . . ."
The court does not address the Defendant's claims that the Plaintiff, as substituted, is not the legal owner of the claims made in this action, or that it had no authority to file the lien since it was no longer in existence at that time, or that its reinstatement did not validate the lien, but leaves these issues for determination on the merits of this action or on a separate motion to discharge the lien made and considered in accordance with the provisions of General Statutes § 49-35a, as amended by P.A. 03-19, S. 113, and General Statutes § 49-35b.
The Motion to Substitute is granted and the Motion to Dismiss is denied.
Jane S. Scholl, J.