54-56 Broadwayv.Smithfield Assoc.

Connecticut Superior Court G.A. 21 at NorwichMar 5, 2007
2007 Ct. Sup. 5268 (Conn. Super. Ct. 2007)
2007 Ct. Sup. 526842 CLR 901

No. 15549

March 5, 2007


Corporations and Other Business Organizations Limited Liability Companies — De Facto Existence — Erroneous Commencement of a Summary Process Action in the Name of an LLC that Has Not Yet Been Formally Created Cannot Be Cured by Amendment.

Process — Service — Defects — Erroneous Commencement of a Summary Process Action in the Name of an LLC that Has Not Yet Been Formally Created Cannot Be Cured by Amendment.

Summary Process — Procedural Matters — Service of Process — Erroneous Commencement of a Summary Process Action in the Name of an LLC that Has Not Yet Been Formally Created Cannot Be Cured by Amendment. Although the Circumstantial Defects Statute, CGS § 52-123, has been applied liberally to permit a plaintiff to amend a complaint to correct the name or capacity with which a defendant was described, the Statute should not be liberally interpreted to permit a plaintiff to correct information as to itself. This opinion holds that the erroneous commencement of a summary process action in the name of a limited liability company that had not yet been formally created through the filing of incorporation papers with the Secretary of State cannot be cured by amending the complaint.


This is a summary process action brought by the plaintiff landlord, 54-56 Broadway, against the defendant, Smithfield Associates, LLC and Zane Megos, for non-payment of rent. The defendant has filed a motion to dismiss on the grounds that 54-56 Broadway, LLC was not a properly formed corporation at the time that it issued the notice to quit and commenced this action. The defendants maintain that such a defect is fatal to a summary process action. The plaintiff maintains that even though it had not been formally registered with the Secretary of State at the time, it was a de facto corporation at the time the action commenced. Therefore, the plaintiff maintains that this summary process action is valid. For the reasons that follow, this court agrees with the defendants and grants their motion to dismiss.

Facts Pertaining to the Issue CT Page 5269

The parties have stipulated to the basic facts of this case, which the court finds to be as follows.

The court commends both counsel for the quality and clarity of their arguments and briefs.

On about April 2004, the defendant entered into a lease with the plaintiffs predecessor in interest. Thereafter, one LemLem Egzihaber took title to the premises on January 18, 2006. Apparently, Egzihaber made arrangements to form 54-56 Broadway, LLC. On January 23, 2006, Egzihaber quitclaimed the premises to the LLC, and the original deed and the subsequent quitclaim were filed on February 14, 2006. The paperwork for the LLC, however, had not been filed with the Secretary of State at that time. The defendant failed to pay the rent due on September 1, 2006.

Notice to quit was filed and is dated October 11, 2006. It lists the name of the landlord as "54-56 Broadway, LLC," and was served on Smithfield Associates, LLC and Zane Megos on October 12, 2006. The summons and complaint indicates that the "plaintiff, 54-56 Broadway, LLC is the recorded owner" of the property at issue here.

The parties further agree, and the court finds that the plaintiff, 54-56 Broadway, LLC, was not fully incorporated until November 16, 2006.

Discussion

"The issue of standing implicates this court's subject matter jurisdiction." (Internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 368, 880 A.2d 138 (2005). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 390, 880 A.2d 865 (2005). "A lack of subject matter jurisdiction . . . requires dismissal, regardless of whether prejudice exists." America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 480, 866 A.2d 698 (2005).

"The jurisdiction of the Superior Court in summary process actions . . . is subject to a condition precedent . . . As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." Lampasona v. Jacobs, 209 Conn. 724, 728-29, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 590 (1989). The absence of a valid notice to quit vitiates any jurisdiction which the court could have over a summary process action. Owens, Renz Lee Co. v. Carbone, Superior Court, Housing Session, judicial district of New Haven, Docket No. SPNH 40986 (November 25, 1994, Jones, J.) [ 13 Conn. L. Rptr. 117], citing Lampasona v. Jacobs, supra, 209 Conn. at 728.

In Isaac v. Mt. Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985), the appellate court upheld the trial court's dismissal of a wrongful death action for lack of subject matter jurisdiction because, at the time the action was brought, the plaintiff erroneously alleged that she was the appointed administratrix. The trial court found that the plaintiff was not issued letters of administration and therefore, she could not bring the action. The court stated: "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.) An entity that does not have "a legal existence . . . can neither sue nor be sued." (Internal quotation marks omitted.) Id.

In America's Wholesale Lender v. Pagano, supra, 87 Conn.App. at 474, the plaintiff instituted an action under its trade name, "America's `Wholesale Lender," rather than its corporate name, "Countrywide Home Loans, Inc." The court noted that "[a]lthough 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 . . . 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." (Citation omitted.) Id., 477. The court mentioned 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 [General Statutes] § 52-123 when it did not result in prejudice to either party." (Emphasis in original.) Id., 478. The court declined "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." (Emphasis in original.) Id.; see also Century 21 Access America v. McGregor-McLean, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 4000764 (July 20, 2005, Doherty, J.) [ 39 Conn. L. Rptr. 639] (where court granted the defendant's motion to dismiss because plaintiff brought suit under its fictitious trade name rather than its true corporate identity); Leffler v. Family Self-Service Car Wash, Superior Court, judicial district of New London, Docket No. 560454 (May 3, 2002, Corradino, J.) (where court granted the defendant's motion to dismiss for lack of subject matter jurisdiction because plaintiff sued an entity that "did not have a legal existence"); Diaz v. PARCC Health Care, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4006901 (January 20, 2006, Rodriguez, J.) [ 40 Conn. L. Rptr. 648] (where court granted the defendant's motion to dismiss for lack of subject matter jurisdiction because a deceased person is a nonexistent entity and does not have standing).

General Statutes § 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."

In the present case, it is clear from the parties' submissions that 54-56 Broadway, LLC was not a legal entity in existence at the time the notice to quit was issued and at the time this action was commenced. Therefore, the plaintiff lacked the legal capacity to sue prior to November 16, 2006. Thus, a motion to dismiss is a proper method to challenge the plaintiff's standing where the court has no jurisdiction over an action at its commencement. A lack of subject matter jurisdiction requires dismissal. America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 480. Accordingly, the defendants' motion to dismiss is granted and the case is dismissed.