Opinion
No. HHD-CV-02-0816220 S
November 12, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
I. INTRODUCTION/PROCEDURAL HISTORY
This action arises out a dispute between real estate brokers over a commercial real estate commission, where the plaintiff, Coldwell Banker Manning Realty, Inc., and the defendant, Cushman and Wakefield of Connecticut, Inc., each had an agreement to represent Computer Sciences Corporation with regard to real estate transactions. In its Complaint dated April 26, 2002, the plaintiff brought claims against the defendant for fraud, violation of statutory duty, breach of duty to deal in good faith, tortious interference with a contract, breach of contract and violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act ("CUTPA"). Following this Court's order that the case and a companion case, Coldwell Banker Manning Realty, Inc. v. Computer Sciences Corporation, HHD-CV-03-0825180 S, be stayed pending arbitration, the arbitrator, the Greater Hartford Association of Realtors, refused to entertain the arbitration. The plaintiff then filed a motion to lift the stay, which was followed by the defendant's motion to confirm the arbitrator's award On April 19, 2007, the defendant's motion to confirm the arbitrator's award was granted. The plaintiff then appealed from the trial court's decisions as to the arbitrability of the dispute and the motion to confirm the award. The Supreme Court reversed the judgment of the trial court and remanded the case for further proceedings. Coldwell Banker Manning Realty, Inc. v. Cushman, 293 Conn. 582, 980 A.2d 819 (2009).
On May 26, 2010, the defendant filed a Motion to Dismiss the present action on the grounds that this Court lacks subject matter jurisdiction because the plaintiff has never existed as a corporate entity, and thus, assertedly, lacks standing to bring the action. The defendant has filed a memorandum of law in support of the Motion. On June 22, 2010, the plaintiff filed an objection to the Motion and an accompanying memorandum of law. The Court heard oral argument on the Motion at the short calendar on July 12, 2010.
The parties have consented in writing to an extension of the 120-day deadline for the filing of this Memorandum of Decision
II. ANALYSIS A. STANDARD OF REVIEW
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2009). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
B. THE PARTIES' ARGUMENTS
The defendant's Motion to Dismiss is premised on the assertion that the Court lacks subject matter jurisdiction over the action because there is not now, nor has there ever been, a legal entity known as Coldwell Banker Manning Realty, Inc., registered as a corporation with the Connecticut Secretary of the State's office. The plaintiff disagrees, maintaining that it does exist as a corporation, with standing to sue the defendants, because the name Coldwell Banker Manning Realty, Inc. is a misnomer that is amenable to correction under General Statutes § 52-123.
The defendant's argument implicates the plaintiff's status as a real party in interest, which, in turn, implicates its standing to bring and prosecute a lawsuit. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Citation omitted; internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 112-13, 967 A.2d 495 (2009).
C. APPLICATION OF GENERAL STATUTES § 52-123 TO CLAIMS BROUGHT BY PLAINTIFFS IN THE NAME OF NON-EXISTENT LEGAL ENTITIES
General Statutes § 52-123 provides that "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." The plaintiff does not dispute the defendants' assertion that Coldwell Banker Manning Realty, Inc., is not a corporation registered with the Connecticut Secretary of the State's Office. Instead, it argues that the true corporate name is Manning Realty, Inc., and that the inclusion of the phrase "Coldwell Banker" is a circumstantial defect within the meaning of § 52-123.
In America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 866 A.2d 698 (2005), our Appellate Court drew the bright line rule that a plaintiff that has used a fictitious name for itself when commencing an action may not avail itself of § 52-123. In that case, the plaintiff instituted an action under its trade name, "America's Wholesale Lender," rather than its true corporate name, "Countrywide Home Loans, Inc." The Court there explained 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 . . . Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name." (Citations omitted; internal quotation marks omitted.) Id., at 477. While the Appellate Court noted that "this court, as well as our Supreme Court, has held in numerous circumstances that the mislabeling or misnaming of a defendant constituted a circumstantial error that is curable under § 52-123 when it did not result in prejudice to either party," it nonetheless "[declined] . . . to extend the use of § 52-123 in this manner to a plaintiff that has used a fictitious name for itself when commencing an action." Id., 478.
Importantly, the Court emphasized that a motion to dismiss an action for the plaintiff's failure to bring suit under its true name must be granted regardless of prejudice. "The defendant does not argue, nor could she, that she suffered prejudice as a result of Countrywide's commencing this action solely under its trade name. Since the beginning of her relationship with Countrywide, the defendant has conducted business with Countrywide only under its trade name. A lack of subject matter jurisdiction, however, requires dismissal, regardless of whether prejudice exists." Id., 480.
The Pagano Court was careful to distinguish its decision from that in the earlier case of Dyck O'Neal, Inc. v. Wynne, 56 Conn.App. 161, 742 A.2d 393 (1999). There, "[the Appellate Court] concluded that the [trial] court properly permitted the substitute plaintiff to amend his designation from Dyck O'Neal individually to Dyck O'Neal, Inc. That case is distinguishable from [ Pagano] for two reasons. 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." (Emphasis added.) America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 478 n. 5.
Soon after the Pagano decision, the Appellate Court revisited the issue of misnamed plaintiffs in the case heavily relied upon by the plaintiff, Young v. Vlahos, 103 Conn.App. 470, 929 A.2d 362 (2007). In that case, the plaintiff inserted the phrase "Roy Young d/b/a" prior to the plaintiff's true name, Silvermine Investors, LLC, in the writ, summons and complaint, which the Court found to be a circumstantial defect amenable to § 52-123. Id., 478.
In Young, the case hinged not on whether the plaintiff, as named, existed, which was the determinative factor in Pagano, but whether the party who filed suit was the same as the party on the lease. "[T]he defendant raised the question of whether the plaintiff had standing to bring the action at trial. It noted that the complaint identified the plaintiff as Roy Young d/b/a Silvermine Investors, LLC, in contrast to the lease, which identifies the lessor simply as Silvermine Investors, LLC." (Internal quotation marks omitted.) Young v. Vlahos, supra, 103 Conn.App. 475. The Appellate Court agreed with the trial court's conclusion that, "[b]y admitting in its answer that the plaintiff was the lessor, the defendant knew that Silvermine Investors, LLC, was the party in interest." Id., 478.
The defendant(s) in the present case have filed answers, but neither admits the existence of Coldwell Banker Manning Realty, Inc. as a legal entity. Regardless, because the plaintiff filed suit using an unregistered trade name, it has no standing to sue.
The Appellate Court went on to note that "the defendant was not confused by the allegations of the complaint and that the use of `Roy Young d/b/a Silvermine Investors, LLC,' was a circumstantial defect amenable to § 52-123. Section 52-123 is a remedial statute and therefore must be liberally construed in favor of those whom the legislature intended to benefit . . . Our Supreme Court has explained that § 52-123 replaces the common-law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer . . . in an original writ, summons or complaint . . . When a misnomer does not result in prejudice to a party, the defect in the writ is circumstantial error . . . The misnomer in this case, which the [trial] court described as `a poor and superfluous choice of words,' was `Roy Young d/b/a.' By admitting in its answer that the plaintiff was the lessor, the defendant knew that Silvermine Investors, LLC, was the party in interest." (Citation omitted; internal quotation marks omitted.) Id.
The Young Court did not discuss why it considered Roy Young d/b/a Silvermine Investors, LLC to be a misnomer rather than a fictitious name, but that finding accords with the distinction between descriptive terms and fictitious names. Like Dyck O'Neal, Inc. v. Wynne, supra, 56 Conn.App. 161, Young concerned a descriptive term that did not conceal the plaintiff's true identity. "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." (Emphasis added; internal quotation marks omitted.) Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000). A federal court has further explained that "the significance [of the term `doing business as'] is, thus, much like that given to other phrases in common use in the law for slightly different purposes, `alias' . . .'a/k/a' or `also known as' . . ." Southern Ins. Company v. Consumer Ins. Agcy., Inc., 442 F.Sup. 30, 31 (E.D.La. 1977). Thus, the term d/b/a actually clarifies the identity of a party by openly acknowledging the multiple names used by the entity.
Unlike a d/b/a, a trade name provides no indication on its face that the party operates under a different name. Mindful of this problem, the Pagano Court discussed the policy underlying Connecticut's trade name statute, General Statutes § 35-1: "[O]ur trade name regulation statute . . . requires legal entities doing business in this state under an assumed or fictitious name to file a trade name certification in the town in which such business is to be conducted prior to engaging in such business. We have recognized that while § 35-1 may provide some protection to persons transacting business under a trade name, it is primarily intended to protect [those doing business with the trade name] by giving them constructive notice of the contents of the trade name certificate." (Internal quotation marks omitted.) America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 479.
As the Appellate Court explained in the companion case to Pagano, America's Wholesale Lender v. Silberstein, 87 Conn.App. 485, 488 (2005), "[o]ur decision in [ Pagano] rested primarily on the mandate that parties not use fictitious names except in the rarest of cases, in which the issues litigated and the interests of the parties demand the use of a fictitious name . . . We also recognize the heightened interest of the public in knowing who is financially and personally liable for the actions of entities doing business under trade names." (Citations omitted; internal quotation marks omitted.)
The question in the present case, then, is whether "Coldwell Banker Manning Realty, Inc.," is a fictitious name used by the plaintiff, as in Pagano, or a mere misnomer or description error used in filing the suit, as in Dyck O'Neal and Young. The plaintiff filed suit under the name Coldwell Banker Manning Realty, Inc.; however, the actual name of the corporation that is filed with the Connecticut Secretary of the State's Office is Manning Realty, Inc. Like Pagano, the facts in this case are distinguishable from those in Dyck O'Neal, Inc. v. Wynne, supra, 56 Conn.App. 161. Dyck O'Neal centered on a missing designation, "Inc.," that did not conceal the plaintiff's identity, but merely incorrectly described it. Here, there was no missing designation or incorrect description, but instead a fictitious name that did conceal the true identity of the party, Manning Realty, Inc. Furthermore, whereas the record in Dyck O'Neal suggested that the omission of the plaintiff's designation was a typographical error in the Court's judgment file which was not necessarily attributable to the plaintiff, the name "Coldwell Banker Manning Realty, Inc.," has been consistently used by the plaintiff over the course of eight years of litigation.
The plaintiff argues that the history of the cases reveals not even a scintilla of evidence that the defendant was confused as to the identity of the plaintiff. Regardless, a motion to dismiss an action for the plaintiff's failure to bring suit under its true name must be granted regardless of prejudice, even when a defendant has conducted business with the plaintiff only under its trade name. See America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 480.
The plaintiff also contends that the present case is akin to Young because the plaintiff's true name, Manning Realty, Inc., was nested within the name used in commencing the suit. This argument disregards the distinction between the term d/b/a and a trade name. In Young, both Roy Young and Silvermine Investors, LLC, were legal entities with the capacity to bring suit. The use of d/b/a simply indicated that the name of the business was Silvermine Investors, LLC, and the person behind it was Roy Young. Consequently, Roy Young d/b/a Silvermine Investors, LLC, did not purport to be the actual, legal name of the entity. Coldwell Banker Manning Realty, Inc., on the other hand, does portray itself as the true name of the entity. There is no signifier, such as d/b/a, to indicate that Manning Realty, Inc. is the true name of the business.
A judge of this Court encountered a very similar fact pattern in Century 21 Access America v. McGregor-McLean, Superior Court, judicial district of Fairfield, Docket No. CV 04 4000764 (July 20, 2005, Doherty, J.) ( 39 Conn. L. Rptr. 639). In that case the plaintiff, Access America, LLC, filed suit under its trade name, Century 21 Access America. Though the true name of the entity was present, at least in part, in the name used in filing the suit, the Court held that "[s]ubject matter jurisdiction cannot be conferred when an action is instituted under a trade name, as a trade name is not a legal entity with capacity to sue. The plaintiff brought suit under its trade name and, therefore, it has no standing to sue." Id.
The plaintiff has not argued that, like Young, the defendant admitted that the plaintiff is the party at issue, nor would that change this Court's decision. The issue here is not whether the named plaintiff was the same as the party involved in the underlying transaction, but whether the plaintiff had standing to bring suit in the first place. Likewise, the fact that this Motion was not filed until eight years after the suit was commenced, and after an earlier motion made its way to our Supreme Court, does not affect the outcome. "The objection of want of jurisdiction may be made at any time . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage [of] the proceedings." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 390, 880 A.2d 865 (2005). Here, as in America's Wholesale Lender v. Silberstein, supra, 87 Conn.App., 489, "[t]he named plaintiff in the original complaint never existed . . . [B]ecause [the plaintiff] had no standing to bring an action, no action in this case ever was commenced, as it was void ab initio. In the absence of standing on the part of the plaintiff, the court has no jurisdiction." (Citation omitted.)
III. CONCLUSION
While it is troubling to dismiss a case that has been in litigation for over eight years, this situation illustrates the trouble presented by plaintiffs that file suit under unregistered trade names. If, after years of litigation, a defendant remains unaware of the true identity of the plaintiff because it filed suit under an unregistered trade name, the Pagano Court's concern for the interest of the public in knowing who is financially and personally liable for the actions of entities doing business under trade names appears to be especially well-founded.
Section 52-123 may not be extended to a plaintiff that has used a fictitious name for itself when commencing an action. Consequently, the named plaintiff is not a legal entity with the capacity to sue. Therefore, because the plaintiff has brought suit under its trade name, it has no standing to sue, and the defendant's Motion to Dismiss for lack of subject matter jurisdiction must be GRANTED.
It is so ordered this 12th day of November 2010.