Opinion
HHDCV176084460S
10-30-2018
Law Offices of John Q. Gale, LLC v. Nix’s Kitchen, LLC et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.T.R.
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO JUDGE TRIAL REFEREE
This matter is before the court concerning the defendant Abner Kurtin’s motion to dismiss (#116) the plaintiff’s amended complaint (#110), and concerning the defendant’s objection to the plaintiff’s request to amend (#121). The court heard oral argument on August 20, 2018.
After considering the parties’ written submissions and oral arguments, the court issues this memorandum of decision.
I
Background
The plaintiff, Law Offices of John Q. Gale, LLC, alleges the following facts. The defendants, Nix’s Kitchen, LLC, Nix’s Hartford, LLC, and Abner Kurtin (Kurtin), hired the plaintiff for various legal services. These services include representation for liquor permits; representation before the State of Connecticut Liquor Control Commission, and the State of Connecticut Department of Labor; and representation in summary process and breach of contract/injunction actions. The plaintiff alleges that the defendants owe a balance of $9,937.78 in unpaid attorney fees and out of pocket expenses.
On November 14, 2017, the plaintiff filed a complaint alleging breach of contract, unjust enrichment, and quantum meruit. Subsequently, defendant Kurtin filed a motion to dismiss dated May 15, 2018, which was addressed to the plaintiff’s amended complaint. On June 29, 2018, the plaintiff filed a request to amend the complaint (#120), to which defendant Kurtin objected (#121), arguing that the plaintiff lacked the legal capacity to sue at the commencement of the action and this matter is void ab initio. On July 11, 2018, the plaintiff filed a memorandum in opposition to the motion to dismiss. Kurtin filed his reply on August 15, 2018.
Additional references to the factual background are set forth below.
II
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). "Pursuant to the rules of practice, 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).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
III
Discussion
The defendant argues that the plaintiff lacks standing because it was not a valid legal entity when it commenced this action. To counter, the plaintiff argues that its trade name and its true name are largely the same. Additionally, the plaintiff argues that it is a registered trade name, and filing suit under its trade name is a circumstantial defect that does not take away jurisdiction from the court. Finally, the plaintiff argues that the defendant is in no way confused or harmed by the plaintiff bringing this action under its trade name.
"We recognize 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 ... This is true even when the plaintiff used only the defendant’s trade name and not the defendant’s legal name ... We decline, however, 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) America’s Wholesale Lender v. Pagano, 87 Conn.App. 474, 478, 866 A.2d 698 (2005).
"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 ... Not having a legal existence, it can neither sue nor be sued." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). "[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 ..." (Internal quotation marks omitted.) Greco Construction v. Edelman, supra, 137 Conn.App. 518. Moreover, "the use of a fictitious or assumed business name does not create a separate legal entity." (Internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 304 n.2, 87 A.3d 546 (2014). "Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, [or] a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name." (Internal Quotation marks omitted.) Just Restaurants v. Thames Restaurant Group, LLC, 172 Conn.App. 103, 107, 158 A.3d 845 (2017). "[W]hen a party ... is not a legally recognized entity, it can neither sue nor be sued, and thus that any claim brought by it or for it must be dismissed for lack of subject-matter jurisdiction for lack of standing." State v. Lamar Advertising of Hartford, Superior Court, judicial district of Hartford, Docket No. CV 08 5020325 (April 5, 2011, Sheldon, J.) (51 Conn.L.Rptr. 661).
The plaintiff’s reliance on Young v. Vlahos, 103 Conn.App. 470, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008), to support his argument that the defendant here was not confused, harmed or prejudiced in any way, and that the use of the trade name was a circumstantial defect amenable to correction under General Statutes § 52-123, is unavailing. In contrast to the procedural posture here, the defendant in Young admitted in its answer that the plaintiff was the lessor, which constituted a judicial admission, and which dispensed with the need for the plaintiff to prove its standing to initiate the action. See id., 103 Conn.App. 476-77.
In response to the motion to dismiss, the plaintiff admits that the Law Offices of John Q. Gale, LLC is a trade name. Because a plaintiff cannot commence a law suit under a trade name, this court lacks subject matter jurisdiction even if the defendant was aware that it was in fact doing business with the plaintiff under its trade name.
"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." (Footnote omitted.) America’s Wholesale Lender v. Pagano, supra, 87 Conn.App. 480.
CONCLUSION
For the reasons stated above, the motion to dismiss (#116) this action is granted and the objection to the request to amend is sustained (#121).
It is so ordered.
BY THE COURT
The plaintiff’s argument that America’s Wholesale Lender v. Pagano, supra, 87 Conn.App. 474, is not applicable here because the facts are distinguishable is unpersuasive. See Greco Construction v. Edelman, 137 Conn.App. 514, 520, 49 A.3d 256 (2012) ("[t]he court in America’s Wholesale Lender made no distinction between trade names incorporating surnames and those that do not, or between large corporations and sole proprietorships. Rather ... in order for a court to have jurisdiction, the plaintiff must have an actual existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court").