Opinion
No. CV 08 5020325 S
April 5, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS
In this case, the plaintiff State of Connecticut ("State") has sued five defendants — Lamar Advertising of Hartford, Lamar Central Outdoor, LLC, Lamar Obie Corporation, and the Lamar Company of Connecticut, LLC (collectively, "the Lamar Entities"); and Long Hill Tree and Lawn Care Service, Inc. ("Long Hill") — to recover money damages for the unauthorized cutting and removal of trees and shrubs from certain parcels of State property along Interstate 84 in Waterbury, Connecticut. The case, which is fully described in this Court's Memorandum of Decision on Motions for Summary Judgment dated October 21, 2010, is now before the Court for decision on the Motion to Dismiss dated April 15, 2009.
In its Motion to Dismiss, Lamar Advertising of Hartford claims that this Court lacks subject-matter jurisdiction over this case because, as the plaintiff alleges in its now-operative Substitute Complaint, "Lamar Advertising of Hartford" is a trade name for an unnamed "company with its principal place of business in Baton Rouge, Louisiana operating an outdoor advertising business in Connecticut." Id., ¶ 3. Contending that, as a mere trade name, it is a nonexistent legal entity which has no legal rights to assert or legal interests to protect, and thus no capacity to sue or be sued, the defendant argues that the claims made against it must be dismissed for lack of subject-matter jurisdiction. The defendant has supported its Motion to Dismiss with an accompanying Memorandum of Law.
The State has opposed the defendant's Motion to Dismiss by filing an Objection thereto and an opposing Memorandum of Law, in which it attempts to distinguish the authorities relied upon by the defendant and argues that claims against trade names, unlike claims made by them, are not subject to dismissal for lack of subject-matter jurisdiction.
The Motion was argued at Short Calendar on January 18, 2011.
I. STANDARD OF REVIEW CT Page 8690
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).
"Subject matter jurisdiction involves 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." (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Citations omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.)
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).
II. ANALYSIS
In support of its Motion, the defendant relies principally upon two recent decisions from our Appellate Court, America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 866 A.2d 698 (2005) and America's Wholesale Lender v. Silberstein, 87 Conn.App. 485, 866 A.2d 695 (2005), in which it was held that a suit cannot be brought by or on behalf of a trade name because a trade name "is not an entity with legal capacity to sue." Pagano, supra, 87 Conn.App. at 475. The Appellate Court ruled in both cases that, because the plaintiff in any such lawsuit has no actual legal existence, it has no standing to sue, and thus any claim brought by it must be dismissed for lack of subject-matter jurisdiction.
The plaintiff responds that the cases upon which the defendant relies in support of its Motion are not applicable to this case, because here, unlike there, the party appearing only in its trade name is not the plaintiff, but the defendant. This distinction, it asserts, is critical, for as the Appellate Court agreed in both Pagano and Silberstein, it has long been held that plaintiffs' mistakes in misnaming defendants, including mistakes in suing them only by their trade names, are mere circumstantial defects which can be cured by amendment as long as the person who does business under the trade name is not prejudiced thereby. Therefore, it claims, since the defendant's status as a trade name does not affect or undermine the plaintiff's own undoubted standing to bring this action for damages to State property, that status does not affect the Court's subject-matter jurisdiction over this action, much less require that its claims against Lamar Advertising of Hartford be dismissed.
In fact, the Pagano and Silberstein decisions were both based expressly upon an earlier Appellate Court decision in which the effect of a plaintiff's status as a non-existent legal entity upon the court's subject-matter jurisdiction was discussed. The earlier case, Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985), involved the legal capacity of an estate to file a wrongful death action before an administrator was appointed to represent it. The Isaac Court affirmed the decision of the trial court to dismiss the prematurely filed complaint without allowing it to be amended on the following legal basis:
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. 59 Am.Jur.2d, Parties, 20, 21. "An estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent." Bar Association v. Connecticut Bank Trust Co., 20 Conn.Sup. 248, 262 [ 131 A.2d 646 (1957)]. Not having a legal existence, it can neither sue nor be sued. Vonchina v. Estate of Turner, 154 Cal.App.2d 134 [ 315 P.2d 723 (1957)]; 2 Locke Kohn, Conn. Probate Practice 375. Estate of Schoeller v. Becker, 33 Conn.Sup. 79, 79-80, 360 A.2d 907 (1975).
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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.
Isaac, supra, 3 Conn.App. at 600, 602. (Emphasis added.) The upshot of this passage is that when a party, such as an estate, 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.
In Pagano, supra, 87 Conn.App. at 477, the Appellate Court applied its Isaac holding to trade names in the following, identical language, with the identical result:
The defendant argues that because [the plaintiff] initiated suit solely in its trade name, which is a fictitious name and not a legal entity, [the plaintiff] lacked standing and, consequently, the court lacked subject matter jurisdiction to decide the merits of [the plaintiff]'s claim. We agree.
"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." (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). 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; rather, it is merely a description of the person or corporation doing business under that name. Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000). Because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court.
Although the Pagano Court had no occasion to observe as to trade names, like the Isaac Court had observed as to estates, that they could "neither sue nor be sued; " id. at 600 (emphasis added); its identical underlying conclusion — that a trade name, like an estate, is not a recognized legal entity — leads inexorably to the same result.
Analytically, the plaintiff is surely correct that the basis for finding that a trade name, as a non-existent legal entity, cannot be sued is not that it lacks standing to sue, for the doctrine of standing concerns only the justiciable interest of the party bringing suit or otherwise making a claim for relief, not that of the party called upon to defend against that suit or other claim for relief. More broadly, however, the rule of Isaac, as applied to claims brought by trade names in Pagano and Silberstein, has its true legal basis in the concept of justiciability, of which the doctrine of standing is merely one part. "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . ." (Citations omitted; internal quotation marks omitted.) Cadle Co. v. DAddario, 111 Conn.App. 80, 82 (2008); Statewide Grievance Committee v. Burton, 282 Conn. 1, 7, 917 A.2d 1 (2007); Weiner v. Clinton, 100 Conn.App. 753, 757, 942 A.2d 469 (2007). This four-prong test was first articulated in State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982), where our Supreme Court explained its fundamental logic as follows: "Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable . . . [U]nder the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law." Nardini, 187 Conn. at 111. We must therefore apply this four-prong test for justiciability to the instant case.
The first prong of the test requires that there be an actual controversy between or among the parties to the dispute. "An actual controversy exists `where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement . . .' " (Internal quotation marks omitted.) Board of Educ. of Town and Borough of Naugatuck v. Town and Borough of Naugatuck, 257 Conn. 409, 416, 778 A.2d 862 (2001). Here, defendant Lamar Advertising of Hartford is merely a trade name without a separate legal existence. It is therefore not a recognized legal entity. In absence of at least two actually existing parties before the Court, there is obviously no "bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement" between the parties, and thus there is no justiciable controversy. Any judicial decision issued in such a case would be an advisory opinion, procured by and for the sole benefit of the plaintiff, as the only existing legal entity that could gain or lose anything as a result of the court's ultimate decision. In such circumstances, which plainly exist in this case, the first prong of the Nardini test for justiciabiity is not satisfied.
The second prong of Nardini requires that the parties' interests in the proceedings be adverse. `The requirement of adversity `ensure[s] that . . . judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.' " Board of Educ. of Town and Borough of Naugatuck, 257 Conn. at 423-24. In this case, this prong is tightly intertwined with the first prong and just as obviously not satisfied, for in the absence of any actually existing legal entity as its opponent, the plaintiff and the opponent have no genuine adversity of interests, and thus there is no justiciable controversy between them.
See also Action for a Clean Environment v. State, 217 Ga.App. 384 (1995), where the Court of Appeals of Georgia held that absent another party with adverse interests, no justiciable controversy existed. The Court noted that "[t]he words `actual controversy' mean a justiciable controversy where there are interested parties asserting adverse claims on an accrued set of facts." Action for a Clean Environment, 217 Ga.App. at 384. See also Kleinman v. Marshall, 192 Conn. 479 (1984), and Owens v. Owens, No. CV 990359780, 1999 WL 1241925 (Dec. 6, 1999). In Kleinman, the suit was brought by the conservator of Miller's estate, Kleinman, to vacate the conveyance of real estate by Miller to his daughter, Marshall, as invalid due to Miller's incompetence and Marshall's undue influence. Miller died, while the suit, disputing the conveyance, was in progress, and the plaintiff was substituted for by the administrator of his estate, whose primary duty in this suit was to obtain the results beneficial for the heirs of the decedents. Since the defendants were the only heirs of the decedent, they were not opposed to the conveyance. The interests of the parties ceased to be adverse and controversy existed no longer, which rendered the action non-justiciable and warranted its dismissal. In Owens, the plaintiff disputed the probate court's appointment of the defendant as a conservator. In the course of the litigation, the defendant died, and the court dismissed the case, since there was "no longer `an actual controversy' or `parties to dispute . . .'" Owens, 1999 WL 1241925, at *1. These cases illustrate that, in the absence of another party with adverse interests, there is no actual controversy, the case is non-justiciable, and thus the court lacks subject matter jurisdiction to adjudicate the case.
The Nardini test requires that all its prongs be satisfied in order for the matter at bar to be justiciable. Failure to satisfy even one of the prongs results in dismissal of an action. Although, the application of the first two prongs already showed that the case is not justiciable, we will proceed to examine the remaining two prongs.
The third prong requires that the matter in controversy be resolvable by a judicial authority. "Satisfaction of this prong of the Nardini test often turns on whether the issue presented is properly characterized as a `political question' that falls within the exclusive province of the legislature." Board of Educ. of Town and Borough of Naugatuck, 257 Conn. at 424. The question raised here is not a "political question," and this prong of the test is satisfied.
The fourth and final prong concerns the court's ability to grant the plaintiff practical relief. "Typically, inquiry into that aspect of justiciabiity is considered in conjunction with the first Nardini factor, the existence of an actual controversy. As a general rule, [our courts] have held that where the underlying dispute has not been resolved, the court is capable of affording the plaintiff relief." Id. at 426. Where, however, as here, the defendant does not exist as a matter of law, it not only cannot defend any claim made against it but cannot be the subject of any enforceable order to pay money damages to the State. Absent a real party in interest to stand behind it and assume liability in its stead, it is nothing more than a ghost against which any adverse judgment would be a nullity. See also Smith-Lawler v. Lawler, 97 Conn.App. 376, 904 A.2d 1235 (2006) (ruling that the dissolution of the marriage between the defendant and the plaintiff caused the pendente lite order, that the defendant sought to open and vacate, to expire, and, therefore, the court was unable to afford practical relief to the defendant and the case was dismissed as non-justiciable and moot) and Mazzacane v. Elliott, 73 Conn.App. 696, 812 A.2d 37 (2002) (dismissing the plaintiff's vicarious liability claim against the defendant-employer as non-justiciable and moot, because the court was unable to grant practical relief to the plaintiff, when the jury already had found the defendant-employee, who caused the plaintiff's injury, not liable).
Turning finally to the plaintiff's argument that plaintiffs suing defendants only by their trade names have sometimes been permitted, under General Statutes § 52-123, to amend their complaints to substitute business entities using particular trade names as defendants in lieu of the trade names themselves, the Court must note at the outset that such a statutory entitlement is not applicable here, since the State expressly indicated at oral argument that it does not propose to make any such substitution of parties. The existence of a statutory right to correct a misnomer in a pleading absent prejudice to the adverse party, moreover, does not prove that naming a trade name as a defendant does not defeat the court's subject-matter jurisdiction. Instead, the statute must be construed to create an exception to what would otherwise be a fatal pleading defect, extending the court's jurisdiction over cases that would otherwise be subject to dismissal for the limited purpose of considering the substitution of parties, if requested, as an alternative to dismissal. Were it otherwise, the statute permitting such substitution in certain circumstances would be rendered enforceable, for the case would invariably be dismissed before the remedy of substitution could be sought and granted. This analysis was used by our Supreme Court in construing Connecticut's pre-existing "wrong court statute," under which a party who had a lawsuit in a court lacking subject-matter jurisdiction over it was permitted to seek transfer of his case to the proper court in lieu of suffering what would otherwise be certain dismissal. See Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946) (holding that "the effect of [the wrong court statute] is to extend the jurisdiction of the court over a case which it would not have power to determine so far as to authorize it to order a removal [of the case to the proper court]").
For all of the foregoing reasons, the Court concludes that the first two counts of the plaintiff's Substitute Complaint, which have been brought against defendant Lamar Advertising of Hartford, a non-existing legal entity that is admittedly no more than a trade name, must be dismissed for lack of subject-matter jurisdiction. IT IS SO ORDERED this 5th day of April 2011.