Opinion
No. TTD CV09 5005139
March 25, 2010
MEMORANDUM OF DECISION
The defendants, Kenneth and Susan Green, move to dismiss the complaint filed by the plaintiff, SCG Capital Corporation Profit Sharing Trust. The basis for the motion to dismiss is that a trust is not a legal entity capable of commencing a lawsuit, which must instead be initiated by the trustees of the trust.
After the defendants filed a motion to dismiss, the plaintiff filed a motion to substitute the trustees as plaintiffs under P.B. § 9-20. The defendants argue that the court must determine their motion to dismiss before, if at all, reaching the plaintiff's motion to substitute which, ostensibly, would cure the lack of standing by the named plaintiff. The court will address both of these issues in this decision.
I
Surprisingly, the parties' and the court's research discloses no appellate level case deciding whether a common-law trust is sui juris. The plaintiff cites no cases at all that allowed a common-law trust to sue in its own name rather than through its trustee. Connecticut trial court decisions on this point appear uniform in holding that only the trustee has standing to sue on behalf of the trust with respect to third parties. See e.g. Fandacone v. Fandacone, Superior Court, New Britain J.D. Housing Session, d.n. NBSP-052634 634 (March 16, 2000), Gilligan, J.; Randolph Foundation v. Probate Court of Westport, Superior Court, Stamford J.D., d.n. X05-CV98-0167903 (April 13, 2001), Tierney, J.; Lafayette Bank and Trust v. Branchini and Sons Construction Company, 32 Conn.Sup. 124, 125 (1975).
These decisions are in accord with the law for common-law trusts in other jurisdictions. "A trust is not a legal entity. A trust is not . . . capable of legal action on its own behalf . . ." 76 Am.Jur.2d 33, Trusts § 3 (2005). "[A]t common law a trust could not ordinarily sue in its own name but only by its trustees . . ." 88 A.L.R.3d 775 (1978).
A trustee has legal title to the trust res, O'Leary v. McGuinness, 148 Conn. 80, 87-88 (1953); Second Exeter Corp. v. Epstein, 5 Conn.App. 427, 429-30 (1985). Confining legal standing to the fiduciary of a trust estate puts a common-law trust estate on the same footing as a decedent's estate, for which only the duly-appointed representative of the estate may begin legal action, Ellis v. Cohen, 118 Conn.App. 211, 215 (2009); Isaac v. Mount Sinai Hospital, 3 Conn.App. 589, 600 (1985), cert. denied, 196 Conn. 806 (1985); and bankrupts' estates, New Milford Savings Bank v. Jajer, 44 Conn.App. 588, 592 fn. 4 (1997).
Significantly, our statutes governing methods of service against various types of entities omit reference to service of process on trusts, see General Statutes §§ 52-57 through 52-69, although mention is made of the prescribed way to serve nonresident trustees, § 52-61. Similarly, statutory provisions as to who may be parties omit any provision regarding common-law trusts, see General Statutes §§ 52-73 through 52-78.
The court concludes that the named plaintiff, as a trust, lacks standing to bring this action because a common-law trust is not a legally cognizable entity.
II
Turning to the plaintiff's motion to substitute the trustees as plaintiffs under Practice Book § 9-20 and General Statutes § 52-109, these provisions, which are nearly identical, state that a court may allow substitution of plaintiffs if the suit was mistakenly brought "in the name of the wrong person." The plaintiff contends that the present circumstances allow for such curative substitution, even if the defendants are correct that a common-law trust lacks standing.
However, caselaw indicates that the reach of these types of saving provisions is limited to situations where the erroneously-named plaintiff is, itself, a legal entity capable of starting legal actions. If the named plaintiff never enjoyed legal existence, then "there was no legally recognized entity for which there could be a substitute." Isaac v. Mount Sinai Hospital, supra, 602.
In the Isaac case, supra, the decedent's daughter commenced a wrongful death action before she was appointed administratrix of her father's estate, Id., 599. Because a decedent's estate is not sui juris, the daughter's filing was a nullity which required dismissal without consideration of her motion to substitute herself in a representative capacity once she was so appointed, Id., 602.
Similarly, in America's Wholesale Lender v. Pagano, 87 Conn.App. 474 (2005), a plaintiff mistakenly brought suit under a trade name rather than its true, corporate name. "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 . . ." Id., 477. The named plaintiff, therefore, lacked the legal power to confer subject matter jurisdiction upon the court, and the trial court ought to have dismissed the litigation rather than committing error, as it did, by allowing the substitution, Id., 478.
Following these precedents, the named plaintiff in the present case, a common-law trust, possessed no capacity to sue. In the absence of such capacity, the lawsuit is a nullity, and no substitution can occur. The motion to dismiss must be granted.