Opinion
No. 5000182
August 20, 2007
MEMORANDUM OF DECISION
The plaintiff, Kathleen Coulombe, administratrix of the estate of the decedent, Maureen Markovitz, commenced this action for wrongful death and medical malpractice by service of process on the defendants, Aaron Manor, Inc., Ryders Health Management, Inc., Roy Eichengreen, M.D., Christine Pohlman, M.D., and Middlesex Family Physicians on September 7, 2005. In her ten-count complaint the plaintiff alleges that the decedent died on September 22, 2003, while she resided at the Aaron Manor Nursing and Rehabilitation Center (nursing center) as a result of an infection she incurred in an open wound. According to the complaint, during the relevant period of time, Eichengreen was the decedent's physician and was responsible for supervising the medical care that she received at the nursing center, and Pohlman was covering the decedent's care in place of Eichengreen on the day before the decedent died. In counts five and ten, the plaintiff alleges that during this time Eichengreen and Pohlman were the owners, agents and/or employees of Middlesex Family Physicians, were acting within the scope of their employment and for the benefit of Middlesex Family Physicians, and their negligence is thus attributable to Middlesex Family Physicians pursuant to the doctrine of respondeat superior. The plaintiff brings one count of negligence and one count of loss of chance for successful treatment against each of the five defendants.
On October 13, 2005, Eichengreen and Pohlman entered an appearance. On November 30, 2005, the plaintiff filed a motion for default for failure to appear against Middlesex Family Physicians. On December 5, 2005, the law firm representing Eichengreen and Pohlman filed an amended appearance in which it states that it is also appearing for Middlesex Family Physicians in this action. On May 24, 2006, Eichengreen, Pohlman, and Middlesex Family Physicians filed an answer in which, inter alia, they generally deny the allegations of counts five and ten. In the answer, these defendants also included a special defense in which they allege that counts five and ten are barred by the statute of limitations contained in General Statutes § 52-555.
On March 22, 2007, Middlesex Family Physicians filed the present motion to dismiss in which it argues that the court lacks subject matter jurisdiction over the claims against it because it is not a legal entity and does not have the capacity to be sued. Middlesex Family Physicians attached a supporting memorandum of law and an affidavit from Eichengreen to its motion. On April 12, 2007, the plaintiff filed a document entitled "Plaintiff's Objection to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Alternative Request to Amend the Complaint." The plaintiff submitted a memorandum of law and attached a copy of Middlesex Family Physicians' trade name certificate, a bankruptcy document listing Middlesex Family Physicians as a creditor, as well as a telephone listing, an internet advertisement and an article in Connecticut Magazine referring to Middlesex Family Physicians.
DISCUSSION
"Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . 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.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).
Middlesex Family Physicians' motion to dismiss is premised on its assertion that because it is merely a trade name, and not a legal entity, the court does not have subject matter jurisdiction over it, and the action against it must be dismissed. The plaintiff counters that the motion to dismiss should be denied because, as evidenced by its trade name certificate, Middlesex Family Physicians is a partnership, which may be sued in its own name pursuant to General Statutes § 34-328(a). According to the plaintiff, Middlesex Family Physicians demonstrated that it is a legal entity by appearing as a creditor in a bankruptcy case, and by appearing through counsel and filing an answer in the present case. Alternatively, the plaintiff requests the court to permit her to amend the complaint to substitute ProHealth, Inc., which she claims is the current owner of the trade name Middlesex Family Physicians, as defendant. The plaintiff contends that although her claim against this entity would normally be barred by the applicable statute of limitations, she should be permitted to bring a claim against it because naming Middlesex Family Physicians is a circumstantial defect which may be amended. Moreover, the plaintiff argues that ProHealth, Inc., fraudulently concealed the cause of action against it by maintaining a false trade name certificate and by filing pleadings in its trade name as if Middlesex Family Physicians were a legal entity until after the statute of limitations had run. She maintains that if ProHealth, Inc.'s counsel had notified her of its true identity instead of filing an appearance falsely, she could have filed an amended complaint within the statute of limitations period.
Under Connecticut law, "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 who does business under some other name." (Internal quotation marks omitted.) Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000). Accordingly, this court does not have subject matter jurisdiction over an action that is brought by or against a party in its trade name. See American Wholesale Lender v. Pagano, 87 Conn.App. 474, 477, 866 A.2d 698 (2005); Greenwood v. Thomas, Superior Court, judicial district of Hartford, Docket No. CV 03 0825933 (May 17, 2004, Wagner, J.). On the other hand, a partnership is a legal entity arid has the capacity to sue or be sued. General Statutes §§ 34-326 (a), 34-328(a). Accordingly, the court must determine whether Middlesex Family Physicians is a trade name or a partnership.
General Statutes § 34-326(a) provides as follows: "A partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership."
General Statutes § 34-328(a) provides as follows: "A partnership may sue and be sued in the name of the partnership."
According to General Statutes § 34-314(a), "the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership." The plaintiff has presented this court with a certified copy of the trade name certificate of Middlesex Family Physicians, which was presumably filed pursuant to General Statutes § 35-1(a). That section provides in relevant part: "No person, except as provided in this subsection, shall conduct or transact business in this state, under any assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the person or persons conducting or transacting such business, unless there has been filed, in the office of the town clerk in the town in which such business is or is to be conducted or transacted, a certificate stating the name under which such business is or is to be conducted or transacted . . . A copy of any such certificate, certified by the town clerk in whose office the same has been filed, shall be presumptive evidence, in all courts in this state, of the facts contained in such certificate." Here, the certificate describes Middlesex Family Physicians as a partnership. Neither party has presented evidence that contradicts this presumptive evidence. Therefore, the court deems Middlesex Family Physicians to be a partnership. A partnership may be sued in its own name pursuant to § 34-328(a). Accordingly, Middlesex Family Physician's motion to dismiss is denied.
This does not, however, end the analysis, because the plaintiff asks the court to allow her to amend the complaint pursuant to General Statutes § 52-123 if the defendants produce evidence that establishes that Middlesex Family Physicians is not a partnership. Although the parties have not yet presented evidence contradicting the evidence contained in the trade name certificate, the parties will likely present such evidence. The court will therefore consider whether the plaintiff should be permitted to amend her complaint if Middlesex Family Physicians is determined to be the trade name for another person or entity.
Section 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." "Section 52-123 is a remedial statute and therefore it must be liberally construed in favor of those whom the legislature intended to benefit . . . [Section] 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer or misdescription in an original writ, summons or complaint." (Citations omitted; internal quotation marks omitted.) Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396-97, 655 A.2d 759 (1995). When a plaintiff misdescribes a defendant such as by naming a nonexistent entity, "[t]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed." (Internal quotation marks omitted.) Id., 397. The court should first consider "whether the plaintiff had intended to sue the proper party or whether it had erroneously misdirected its action." Id., 397. "Second, [the court should consider] three factors to determine whether the error was a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice." Id.
The Appellate 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. See, e.g., Andover Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 392 (permitting plaintiff to amend citation in order to name town instead of board of tax review as defendant); Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994) (permitting action to stand when summons indicated action against state instead of action against commissioner of transportation and commissioner of transportation received actual notice). This is true even when the plaintiff used only the defendant's trade name and not the defendant's legal name. See, e.g., Motiejaitis v. Johnson, 117 Conn. 631, 169 A. 606 (1933) (permitting plaintiff to substitute individual for nonexistent corporation under which individual was doing business); World Fire Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 136 A. 681 (1927) (permitting plaintiff to amend writ to include individual doing business as named defendant)." America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 478.
Here, it is evident that the plaintiff assumed that Middlesex Family Physicians was a legal entity and thus subject to suit. If Middlesex Family Physicians is merely a trade name, it is also apparent that the plaintiff would have intended to sue the person or entity that is doing business under that name. This court finds the plaintiff intended to sue the proper party.
As to the question of whether this was a misnomer, the record shows that on December 5, 2005, an appearance was entered for Middlesex Family Physicians, and on May 24, 2006, an answer was filed for this party. Presumably these actions were at the direction of the entity that is using this trade name. Therefore, the court finds that the owner of the trade name received actual notice of this action and should have known that it was the intended defendant. Furthermore, the parties have not submitted any evidence that the plaintiff's error misled the proper party to its prejudice. More importantly, the plaintiff's error in misnaming the entity was caused by the proper party's failure to correct the inaccuracies in Middlesex Family Physician's trade name certificate, as it was required to do by § 35-1. Therefore, if evidence is later presented that contradicts the presumptive evidence contained in the trade name certificate that Middlesex Family Physicians is a partnership, then the plaintiff may amend her complaint to bring a count against the company doing business as Middlesex Family Physicians. Should this occur the plaintiff's claim against this party will relate back to the service of the original process, which was within the applicable statute of limitations. Pack v. Burns, 212 Conn. 381, 384, 562 A.2d 24 (1989).
Finally, the plaintiff argues that the statute of limitations does not apply because the owner of the trade name fraudulently concealed the cause of action against it. General Statutes § 52-595 provides the following: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." This statute creates a general exception to the statute of limitations, permitting the cause of action to accrue only upon the plaintiff's discovery of the fraudulently concealed cause of action. Connell v. Colwell, 214 Conn. 242, 245 n. 4, 571 A.2d 116 (1990). A plaintiff must prove that the defendant fraudulently concealed the cause of action by clear and convincing evidence. Falls Church Group v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007). Because this issue depends on facts that must be proven at trial, this issue is not currently before the court.
However, the court has concerns about the conduct of the owner of the trade name and its attorney, as evidenced by its own pleadings. The court wishes to point out some evidence in the record that indicate that a fraud may have been perpetrated on the plaintiff and on the court.
According to the plaintiff's complaint, the plaintiff's decedent passed away on September 22, 2003. Because the plaintiff filed for a ninety-day extension pursuant to General Statutes § 52-190a(b) on September 6, 2005, the two-year statute of limitations for wrongful death period lapsed on December 6, 2005. On December 1, 2005, an attorney signed an appearance form on behalf of Middlesex Family Physicians. Had the entity that was using this trade name disclosed its true identity at that time, rather than filing an appearance for a nonexistent entity, the plaintiff would have been able to amend the complaint before the statute of limitations period lapsed.
An attorney who enters an appearance is acknowledging that the party named on the appearance form is an accurate legal designation of the party for the purposes of the trial. Bauer v. Pounds, supra, 61 Conn.App. 38-39. Counsel from that attorney's law firm now asserts that the name stated on the appearance form is not the proper name for that party. It is also noted that the answer that the same law firm filed on behalf of Eichengreen, Pohlman and Middlesex Family Physicians included a special defense that the claims against Middlesex Family Physicians were barred by the statute of limitations in § 52-555. Because the original complaint was commenced within the limitations period, it is not apparent how this special defense would apply unless Middlesex Family Physicians was not a proper party. Therefore, this indicates that counsel knew that the information provided on the appearance form was inaccurate. Counsel has not taken any steps to correct the appearance form.
Defense counsel would do well to remember the Connecticut Rules of Professional Conduct, Rule 3.3: "Candor toward the Tribunal. (a) A lawyer shall not knowingly: (1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . . or (3) Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in subsections (a) and (b) continue at least to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."
The record also indicates that the plaintiff's efforts to ascertain the legal status of Middlesex Family Physicians were thwarted by these defendants. In the plaintiff's first and second request for production, dated January 11, 2006, the plaintiff requested a copy of Middlesex Family Physicians' articles of incorporation and bylaws. Rather than acknowledging that the requested documents do not exist, on February 14, 2006, Middlesex Family Physicians objected on the ground that the request "seeks information irrelevant to the plaintiff's cause of action." On February 2, March 13, April 11, May 5, June 9, July 10, and August 9, 2006, Middlesex Family Physicians filed requests for extensions of time to comply with the plaintiff's request for production. In each of these requests, it assured the court that the plaintiff would not be prejudiced if the court granted the extension.
"Our rules of practice provide guidelines to facilitate the discovery of information relevant to a pending suit." Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985). "The discovery rules are designed to facilitate trial proceedings and to make a trial less a game of blindman's [bluff] and more a fair contest with the basic issues and facts disclosed to the fullest [practicable] extent." (Internal quotation marks omitted.) Vitone v. Waterbury Hospital, 88 Conn.App. 347, 357, 869 A.2d 672 (2005).
It is now apparent that, contrary to Middlesex Family Physicians' prior objection, the information that the plaintiff sought is highly relevant. Further, despite Middlesex Family Physicians' repeated assurances to the court that the extensions would not prejudice the plaintiffs, the defendants' delay in raising the issue of Middlesex Family Physicians' legal status had the potential for precluding the plaintiff from bringing a timely claim against that party.
Thus, it appears Middlesex Family Physicians, through its attorney, prevented the defendant from discovering facts essential to its cause of action by entering an appearance and filing pleadings in a false name and delaying producing relevant information in response to plaintiff's request. The court does not condone this type of conduct. This is the type of conduct that the fraudulent concealment statute is designed to address.
CONCLUSION
The trade name certificate describes Middlesex Family Physicians as a partnership, and no contradictory evidence has been presented. Therefore, the plaintiff has properly named Middlesex Family Physicians as a defendant. The motion to dismiss is denied. If evidence is later presented that shows that Middlesex Family Physicians is a trade name that is being used by another entity or person, the plaintiff may amend her complaint to name that entity or person in lieu of Middlesex Family Physicians.