Opinion
No. CV 00-0272084S
October 29, 2004
The summons and complaint in this action seeking damages for injuries incurred by a minor on school grounds identify the plaintiff as "Tina DellaValle, PPA Candice DellaValle." The first paragraph of each count in the complaint here states that "[t]he Plaintiff, Candice DellaValle, is a minor and brings this action by her parent, guardian, and next friend, Tina DellaValle." A minor, being legally incompetent to bring an action in its own name, "may bring a civil action only by a guardian or next friend." Orsi v. Senatore, 31 Conn.App. 400, 415, 626 A.2d 750 (1993). The defendants' motion to dismiss claims that identifying the plaintiff in the caption of this case in the language of "Parent PPA Minor Child, as was done here," is ineffective to bring an action for a minor child by next friend and instead named the parent as the plaintiff in the case. (Instead, defendants argue, plaintiff should have brought the action as "Minor Child PPA Parent.") Under defendants' theory, the plaintiff parent lacks standing to prosecute an action for damages to the minor child, and the case must be dismissed for want of subject matter jurisdiction. The plaintiff does not dispute that the nomenclature of the complaint is incorrect but claims that "the misdescription in plaintiff's caption is a circumstantial error" that may be corrected pursuant to § 52-109 and hence does not deprive the court of jurisdiction. For the following reasons, the plaintiff's motions to substitute party plaintiff and to amend the complaint are granted and defendants' amended motion to dismiss is denied.
Long-standing Connecticut jurisprudence requires a court to consider challenges to subject matter jurisdiction before taking any other action. The defendants have cited two cases applying that proposition and holding that a court must consider such challenges to subject matter jurisdiction before considering a motion to amend the complaint. In Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996), a party seeking to sue the state had neglected to include an allegation of certain notice required by General Statutes § 4-61 before bringing the action. The Supreme Court held that the trial court wrongly permitted an amendment to include such an allegation before ruling on a motion to dismiss based on that failure. In Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 599, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 494 (1985), the daughter of a deceased brought a wrongful death action incorrectly describing herself as the administratrix of the estate when she had not been so appointed. Defendants filed a motion to dismiss based on the requirement of General Statutes § 52-555 that only an "executor or administrator" may bring such an action. The Appellate Court held that the trial court correctly dismissed the action rather than considering the plaintiff's subsequent motion to amend the complaint to reflect that she had ultimately in fact been appointed the administratrix of the estate. The court noted
By the time she was appointed administratrix, the three-year limitation for bringing an action under General Statutes 52-555 had passed. That limitation is an essential element of the cause of action under the statute and, as such, it must be strictly observed.
Id., 601. In commenting on the trial court's failure to allow the amendment, the court stated:
The plaintiff's argument that the court should have permitted her to amend the complaint is without merit. The named plaintiff in the original complaint never existed. As a consequence, there was no legally recognized entity for which there could be a substitute.
Id., 602.
Neither of the cases cited by defendants, however, takes into account the special circumstances addressed by General Statutes § 52-109. That statute 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.
As Judge Berger noted in BKM Floorcovering v. Orlando Annulli Sons, Superior Court, judicial district of Hartford, Docket No. CV 98-0576713, 29 Conn. L. Rptr. 657 (May 2, 2001):
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. First, the statute provides for the actual substitution of one party for another, not the mere correction of a party's name. Second, the statute applies only when an action has been commenced in the name of the wrong person as plaintiff. 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.
Although the Appellate Court has upheld an amendment to a complaint pursuant to § 52-109 where the wrong party had been named; Wickes Mfg. Co. v. Currier Electric Co., 25 Conn.App. 751, 760-61, 596 A.2d 1331 (1991); no appellate case has expressly considered whether § 52-109 overrides the requirement of immediately considering challenges to subject matter jurisdiction. In Fairfax Properties, Inc. v. Lyons, 72 Conn.App. 426, 437 fn.12 (2002), the Appellate Court noted the apparent conflict between these two doctrines and, without deciding the issue, referred to a recent trial court decision, DiLieto v. County Obstetrics, Superior Court, judicial district of Waterbury, Docket No. 150435, 26 Conn. L. Rptr. 276 (February 29, 2000, Sheldon, J.), as among "decisional authority . . . that allows an amendment to a complaint to add an alternative basis for subject matter jurisdiction after jurisdiction has been questioned."
In DiLieto, the defendants moved to dismiss a malpractice action because the plaintiff, although in bankruptcy, had sued in her own name. The court held that the defendants were correct in arguing that the action should have been brought in the name of the bankruptcy estate. The court then confronted the seeming contradiction between § 52-109 and the doctrine that courts must dismiss an action whenever they lack subject matter jurisdiction:
What is puzzling about this statute on first reading is the seeming impossibility of invoking its protections without first causing the court to dismiss for lack of subject-matter jurisdiction. Proof that an action was commenced "in the name of the wrong person" would seem inexorably to establish that the original plaintiff has no standing to prosecute the action.
After carefully analyzing cases on both "decide jurisdiction first" and § 52-109, the DiLieto court resolved that conundrum by treating § 52-109 as a legislative extension of jurisdiction, ratified by the judges in Practice Book § 9-20, to "exercise jurisdiction for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs." The court concluded that "[t]he legislature's provision of this statutory remedy would be completely undermined by any rule requiring the immediate dismissal for lack of subject-matter jurisdiction of any action commenced in the name of the wrong person as plaintiff." It also noted that
Section 9-20 of the Practice Books provides that "[w]hen 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."
a series of decisions from our Appellate Court have established that in spite of the "decide jurisdiction first" rule, a case can be saved from dismissal for lack of subject-matter jurisdiction by the granting of a proper motion to substitute under General Statutes § 52-109 or its functionally identical counterpart in Practice Book § 9-20.
Several trial courts have adopted the DiLieto approach. This court concurs with that analysis as well.
See, e.g., Lupinacci v. Stamford, 48 Conn.Sup. 1, 823 A.2d 456, 32 Conn. L. Rptr. 672 (2002) (in action to recover for damage to real property, permitting amendment of plaintiff to a limited liability partnership where the originally-named individual plaintiffs "were not sufficiently aware at the time this action was being brought in the individual names and not as a limited liability partnership." id., 2; Cherry Hill Constr. Co. v. Gateway Plaza, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 03-0081364 (Scholl, J., February 5, 2004) (permitting amendment of named plaintiff from "Cherry Hill Construction Company, Inc.," to its actual name); Carpinella v. Shield, Superior Court, judicial district of Waterbury, Docket No. CV00-0160901 (Alvord, J., October 10, 2003) (permitting amendment to add name of homeowner wife to action brought by husband in action for defective home repairs).
The present case illustrates the necessity for and wisdom of § 52-109. The language of the complaint placed all defendants on notice that a minor child was bringing this action by the child's next friend. The term PPA is a rather obscure Latin phrase whose precise meaning is probably unknown to most people. By naming herself first in the case caption, the adult next friend may have named the wrong person as plaintiff, but the transposition of names did not in any way confuse or prejudice the rights of others. Section 52-109 is intended as a remedial statute "intended to soften the otherwise harsh consequences of strict construction under the common law." BKM Floorcovering v. Orlando Annulli Sons, citing Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 399-00, 655 A.2d 759 (1995). As such, it "must be `construed liberally in favor of those whom the law is intended to protect.'" Id., citing Solomon v. Gilmore, 248 Conn. 769, 774-75, 731 A.2d 280 (1999).
The plaintiff argues that she qualifies for relief under the statute because she filed this case as "Next Friend, PPA Minor Child" by mistake, under the impression that this formula properly brought an action for a minor through its next friend. In view of the lack of binding appellate authority on use of the PPA terminology and the casual use in cases of both forms of nomenclature; see, e.g., William Bartkowski PPA for Alexandra Bartkowski v. Lynn Case et al., Superior Court, judicial district of Litchfield, Docket No. CV 02 0089082 (April 6, 2004, Brunetti, J.), the court finds that this case qualifies as one in which the action was commenced in the name of the wrong party by curable mistake. There is also no doubt 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."
The plaintiff's motions to substitute party-plaintiff and amend the complaint are therefore granted, and the defendants' motion to dismiss is denied.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT