Opinion
No. X02-UWY-CV-09-5015827S
January 29, 2010
I. BACKGROUND
This action was commenced by the filing of a complaint on or about April 14, 2009. The return date was April 28, 2009. The plaintiff named on the summons was "The Vincent F. Miscia Profit Sharing Plan c/o Fremont National Bank Trust Co." The Plan is a profit sharing plan organized under the laws of the United States and the State of Nebraska. Its trustee is the Fremont National Bank Trust Co., 610 N. Main Street, Fremont, Nebraska 68205 (hereinafter referred to as "Fremont"). Its sole beneficiary is Dr. Vincent F. Miscia, a resident of Bridgewater, Connecticut. The Plan is a self-directed trust; Dr. Miscia directs all investment decisions and Fremont acts as administrator.
The Complaint alleges that several defendants engaged in fraudulent acts, made intentional misrepresentations, acted negligently, and violated C.G.S. Section 42-110b(a) (CUTPA) in connection with several loans made by the Plan. On November 3, 2009, the Plaintiff made a Motion to Substitute Party-Plaintiff Fremont National Bank Trust Co. as the Plaintiff in this action. Plaintiff indicated in his motion that he had mistakenly captioned the Complaint in the name of the Plan instead of the trustee, although the trustee was identified in Count One of the Complaint and in the summons.
On October 27, 2009, Defendant Goodfellow Companies, LLC moved to Dismiss the action on the grounds that the plaintiff was not a legal entity having the capacity to sue or be sued. On November 3, 2009, Defendants Bridgewater Funding, LLC; Bridgewater Partners, LLC; and Defendant Douglas Esposito joined in the motion. On November 6, 2009, Defendant David George filed a Motion to Dismiss on similar grounds. On January 5, 2010, Apportionment Defendant Jennifer Cafarelli also joined Defendant Goodfellow's Motion to Dismiss. On September 2, 2009, Bridgewater Funding, LLC; Bridgewater Partners, LLC; and Douglas Esposito brought an Apportionment Complaint against Fremont and others. On October 20, 2009, Fremont filed a Motion to Dismiss the Apportionment Complaint on the grounds that C.G.S. Section 52-572h does not allow apportionment in the circumstances, as alleged, of this case. On December 21, 2009, Apportionment Defendant Linda Keenan filed a similar motion as to Count Four of the Apportionment Complaint. On January 6, 2010, Apportionment Defendant Jennifer Cafarelli filed a similar motion as to Count Five of the Apportionment Complaint.
On January 26, 2009, the parties argued all motions before the Court at which time the Court reserved decision.
II. DISCUSSION A. Motions to Dismiss Complaint
C.G.S. Section 52-109 provides: "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." "When an action has commenced in the wrong name, it is proper to substitute the real party in interest to avoid the harsh and inefficient result that attaches to the mispleading of parties at common law." Reiner v. West Hartford, Superior Court, Judicial District of New Britain, Docket No. CV00 0502686S (March 22, 2001, Aronson, J.T.R.) (quoting FDIC v. Retirement Management Group, Inc., 31 Conn.App. 80, 84; 623 A.2d 517 (1993).
C.G.S. 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."
Plaintiff argues that his failure was a mistake that falls within the purview of both statutes cited above. Defendants argue, correctly, that in Connecticut, a trust is not considered a separate entity for the purpose of bringing suit and the trustee, rather than the trust, must bring suit. Treat v. Stanton, 14 Conn. 445, 454-55 (1841).
The term "mistake" is not defined in either statute listed above. However, "Generally the propriety of substitution of parties depends on whether the cause of action remains the same and whether the party substituted bears some relation of interest to the original party and to the litigation. Courts have also held that substitution of plaintiffs should not be permitted where it will prejudice the defendant. Conversely, courts have allowed substitution in particular cases where the defendant was not prejudiced by the substitution . . ." 59 Am.Jur.2d 748-49, Parties Sec. 323 (2002).
In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995), the Connecticut Supreme Court held that, in a case where the Board of Tax Review was sued, instead of the Town of West Hartford, "Section 52-123 is a remedial statute and therefore it must be liberally construed in favor of those whom the legislature intended to benefit." The Court further opined in allowing the plaintiff to amend its complaint that, "[w]e, 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." Id. at 399. The same reasoning may apply with equal force to C.G.S. Sec. 52-109.
Therefore, the Court finds that the initial complaint contained a mistake regarding the correct identity of the plaintiff. The Court further finds that it is necessary for the determination of the real matter in dispute to allow another entity to be substituted as plaintiff in the action. Parenthetically, although unnecessary under the wording of the statute, the Court finds that, since the trustee was named as trustee in the complaint with its address and name listed on the summons, there is no prejudice to the defendants by granting the motion to substitute plaintiff. The Motions to Dismiss the Complaint are, accordingly, denied.
B. Motion to Substitute Party Plaintiff
Based upon the foregoing statutes and case law, the Motion to Substitute Party Plaintiff is granted.
C. Fremont's, Keenan's and Cafarelli's Motions to Dismiss Apportionment Complaints
A motion to dismiss is the proper motion to assert lack of subject matter jurisdiction. P.B. Sec. 10-31(a)(1). "Properly granted on jurisdictional grounds, [a motion to dismiss] essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court." Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266, cert. denied, 271 Conn. 931 (2004).
The Apportionment Plaintiffs bring their claim against the above-named Apportionment Defendants pursuant to C.G.S. Sec. 52-102b and 52-572h(c). "Section 52-102b is the exclusive means by which a defendant may add a person who is or may be liable pursuant to Section 52-572h for a proportionate share of the plaintiff's damages as a party to the action." Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 792-93, 756 A.2d 237 (2000).
C.G.S. Sec. 52-572h(c) applies to actions based on negligence for "damages resulting from personal injury or damage to property . . ." Cases involving solely commercial or economic losses do not constitute "damage to property" and do not qualify for apportionment. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 583-84, 657 A.2d 212 (1995). The plaintiff must suffer physical injury or damage to tangible personal property in order for the apportionment statute to apply. Id. at 582. Moreover, the scope of Sec. 52-572h should be limited and its reach receive a "strict construction" since it is derogation of the common law. Id. at 581.
The claims in this case relate only to commercial losses. Accordingly, the Court has no subject matter jurisdiction over the claims asserted under C.G.S. Sec. 52-102b and 52-572h(c) and the Motions to Dismiss the Apportionment Complaints are granted. In view of the Court's ruling, it is unnecessary for the Court to consider grounds 2 and 3 of Fremont's motion, and the various grounds of the other motions.
III. CONCLUSION
Based upon the foregoing reasons:
(1) Defendants' Motions to Dismiss the Complaint are Denied.
(2) Plaintiff's Motion to Substitute Party Plaintiff is Granted.
(3) Fremont's, Keenan's and Cafarelli's Motions to Dismiss the Apportionment Complaints are Granted.