No. CV 04-0491437 S
December 21, 2004
MEMORANDUM OF DECISION
On June 25, 2004, the plaintiffs, identified in the body of the complaint as "Elsayed Aglan, p.p.a. Ahmed Aglan," "Elsayed Aglan, p.p.a. Mohamed Aglan," "Elsayed Aglan, p.p.a. Mahmmoud Aglan," "Elsayed Aglan, p.p.a. Lila Aglan" and "Elsayed Aglan, individually," filed a five-count complaint against the defendants Amaryllis Matos-Martorelli and MGM Construction, Inc. (MGM). Each of the five counts sounds in negligence. This action arises from injuries and losses allegedly sustained by the minor children: Ahmed Aglan, Mohamed Aglan, Mahmmoud Aglan and Lila Aglan in a motor vehicle accident on December 1, 2000. Matos-Martorelli was allegedly operating the motor vehicle owned by MGM that allegedly struck the motor vehicle carrying the minor children.
The plaintiff, Eslayed Aglan's first name is alternatively spelled "Elsayed" and "Eslayed." For purposes of this memorandum, the name will be spelled as it is spelled in the particular pleading, memorandum or exhibit cited.
The defendant, MGM, is alternatively referred to as "MGM" and "MM." For purposes of this memorandum, the name will be spelled "MGM" as it appears in the summons.
On June 27, 2003, Judge Arnold had filed a memorandum of decision granting Matos-Martorelli and MGM's motion to strike counts one through five of the amended complaint in the first action, filed on December 27, 2002. Aglan v. Eldin, Superior Court, judicial district of New Haven, Docket No. CV 02 0472114 (June 27, 2003, Arnold, J.)
On July 29, 2004, Matos-Martorelli and MGM filed a motion to strike all five counts of the complaint, accompanied by a memorandum of law in support of the motion as required by Practice Book § 10-42. Matos-Martorelli and MGM argue that counts one through five should be stricken because the statutory time period to bring a negligence claim has run. Also, Matos-Martorelli and MGM argue that the claims in the complaint were brought in a previous one that the court had stricken on June 27, 2003; Aglan v. Eldin, Superior Court, judicial district of New Haven, Docket No. CV 02 0472114 (June 27, 2003, Arnold, J.); and the court previously determined that the plaintiffs' claims could not be saved by any provision of Connecticut law.
In their memorandum of law, Matos-Martorelli and MGM sometimes erroneously refer to the complaint to be stricken as the "amended complaint."
On September 21, 2004, the plaintiffs filed a memorandum in opposition to the motion to strike. The plaintiffs argue that the court's June 27, 2003 decision granting the motion to strike is not controlling as General Statutes §§ 52-592 (accidental failure of suit) and 52-593 (misnomer) were not available to the plaintiffs until a judgment had been rendered.
Before this court can rule on the motion to strike, it has to determine whether it has subject matter jurisdiction over this cause of action. "A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no mater in what form it is presented and the court must fully resolve it before proceeding further with the case . . ." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "The trial court may raise sua sponte the issue of subject matter jurisdiction." Greco v. Commissioner of Motor Vehicles, 61 Conn.App. 137, 143, 762 A.2d 926 (2000). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003).
While not raised, the court notes that the plaintiff father, Eslayed Aglan, may lack standing to maintain the causes of action on behalf of the minor children, which implicates the court's subject matter jurisdiction. In the present case, the minor children are addressed differently throughout the summons and complaint. The first page of the summons, or Form JD-CV-1, names "AGLAN, ESLAYED" and "AGLAN, Ahmed" as plaintiffs numbers 1 and 2, respectively. According to Form JD-CV-2 of the summons, the plaintiffs are identified as "ESLAYED AGLAN, PPA, ET ALS." This second page of the summons refers to the additional plaintiffs as "AGLAN, Mohamed," "AGLAN, Mahmmoud" and "AGLAN, Lila." In the caption of the complaint, the plaintiffs are identified as "ESLAYED AGLAN, PPA, ET ALS." After the heading "FIRST COUNT" in the complaint, it parenthetically says: "Elsayed Aglan, p.p.a. Ahmed Aglan;" after the heading "SECOND COUNT," it parenthetically says: "Elsayed Aglan, p.p.a. Mohamed Aglan;" after the heading "THIRD COUNT," it parenthetically says: "Elsayed Aglan, p.p.a. Mahmmoud Aglan;" and after the heading "FOURTH COUNT," it parenthetically says: "Elsayed Aglan, p.p.a. Lila Aglan." Lastly, in paragraph one of the first count, which is subsequently incorporated into counts two through four, it says: "[T]he Plaintiffs, Ahmed Aglan, Mohamed Aglan, Mahmmoud Aglan and Lila Aglan, who bring this action through their father and next best friend, Elsayed Aglan . . ." All of these inconsistencies require the court to determine whether the listings of the plaintiffs' names is a jurisdictional defect requiring dismissal.
"The term `per proxima amici' (PPA) is a Latin phrase that translates into next of kin or next of friend." LaChance v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148936 (August 22, 2001, Doherty, J.) ( 30 Conn. L. Rptr. 245, 247 n. 1). "[T]he general rule is well established that a child may bring a civil action only by a guardian or next friend, whose responsibility it is to ensure that the interests of the ward are well represented." (Internal quotation marks omitted.) Id., 246. "The next friend of an infant plaintiff cannot maintain a suit in his own name, but the suit must be brought in the name of the infant. The process must run in the name of the infant by his next friend, and not in the name of the next friend acting for the infant . . . Where the summons names as plaintiff the [parent] ppa the minor child, the infant child is not a party to the action." (Citation omitted; internal quotation marks omitted.) Seabrook v. Greater Bridgeport Transit, Superior Court, judicial district of Fairfield, Docket No. CV 95 0328366 (April 9, 1998, Skolnick, J.) ( 21 Conn. L. Rptr. 657, 658).
It is important to note that in several Superior Court cases examined by this court, the issue of subject matter jurisdiction was actually raised by one of the parties. See LaChance v. Waterbury, supra, 30 Conn. L. Rptr. 246 (in a motion for summary judgment); see also Seabrook v. Greater Bridgeport Transit, supra, 21 Conn. L. Rptr. 657-58 (in a motion to strike); see also Guglielmo v. Caldor, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 0043816 (March 9, 1995, Skolnick, J.) (arguing in a motion to strike that the minor child is not a named party plaintiff, and therefore, the complaint improperly sought "to state a cause of action for [the minor's] pain and discomfort"). In another Superior Court case, the issue of subject matter jurisdiction was raised, sua sponte, by the court in a footnote, but the court did not dismiss the complaint because of a lack of subject matter jurisdiction, but rather, overruled the defendants' objection to the plaintiffs' revised complaint. Sumrell v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 01 0457648 (March 8, 2004, Skolnick, J.).
It is also important to note that there is a Superior Court case that denied a motion to dismiss for lack of subject matter jurisdiction, after addressing and granting the motions to substitute the party-plaintiff and amend the complaint. DellaValle v. D.C. Moore School, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0272084 (October 29, 2004, Frazzini, J.). Therein, the plaintiff did not dispute that the case caption improperly listed the plaintiff as "Parent PPA Minor Child . . ." Id. Nevertheless, the plaintiff argued that "the misdescription in [the] plaintiff's caption is a circumstantial error that may be corrected pursuant to [General Statutes] § 52-109 and hence does not deprive the court of jurisdiction." (Internal quotation marks omitted.) Id. While the caption was incorrect, the court acknowledged that "[t]he first paragraph of each count in the complaint here state[d] that [t]he Plaintiff, Candice DellaValle, is a minor and brings this action by her parent, guardian, and next friend, Tina DellaValle." (Internal quotation marks omitted.) Id. The court further stated: "The language of the complaint placed all defendants on notice that a minor child was bringing this action by the child's next friend. The term PPA is a rather obscure Latin phrase whose precise meaning is probably unknown to most people. By naming herself first in the case caption, the adult, next friend may have named the wrong person as plaintiff, but the transposition of names did not in any way confuse or prejudice the rights of others . . ."
"In view of the lack of binding appellate authority on use of the PPA terminology and the casual use in cases of both forms of nomenclature . . . the court finds that this case qualifies as one in which the action was commenced in the name of the wrong party by curable mistake." (Citation omitted.) Id.
In the present case the defendants have been given adequate notice as to who the intended plaintiffs are because the body of the complaint states: "[T]he plaintiffs, Ahmed Aglan, Mohamed Aglan, Mahmmoud Aglan and Lila Aglan, who bring this action through their father and next best friend, Elsayed Aglan . . ." The complaint makes clear that Eslayed Aglan is the minor children's father.
The court adopts the reasoning of DellaValle v. D.C. Moore School, supra, Superior Court, Docket No. 00 0272084, and therefore the first four counts of the complaint for lack of subject matter jurisdiction are not dismissed.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . ." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
Matos-Martorelli and MGM argue, in their memorandum of law in support of the motion to strike, that counts one through five should be stricken because § 52-584, the statute of limitations to bring a negligence claim, has run. The plaintiffs argue in response that both §§ 52-592 and 52-593 save their untimely claims.
Initially, the court must determine whether a motion to strike is the appropriate vehicle for raising a statute of limitations defense. "[A] claim that an action is barred by . . . the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . . [T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted. If all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted, a motion to strike would be allowed." (Citation omitted; internal quotation marks omitted.) Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).
In the present case, the plaintiffs allege in the complaint that the negligent acts occurred on December 1, 2000, and Matos-Martorelli and MGM agree that the alleged accident did occur on that date. Accordingly, the motion to strike is an appropriate vehicle for Matos-Martorelli and MGM to raise the statute of limitations defense.
Matos-Martorelli and MGM argue that the plaintiffs' negligence claims, however, are barred by § 52-584, which provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
Matos-Martorelli and MGM further argue that the plaintiffs cannot avail themselves of § 52-592 to save their current complaint because to do so, the original action had to have been brought within the two-year statute of limitations, or no later than December 1, 2002, and the plaintiffs' original claims against Matos-Martorelli and MGM were not timely brought. The plaintiffs counter that the court's June 27, 2003 decision granting the motion to strike the amended complaint, which named Matos-Martorelli and MGM as defendants for the first time, is not controlling as § 52-592 was not available to them until a judgment had been rendered. Therefore, the plaintiffs argue that since they could not avail themselves of § 52-592 until the motion to strike the amended complaint was granted on June 27, 2003, the present action was timely commenced.
Section 52-592(a), the accidental failure of suit statute, provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . . For the plaintiffs to utilize § 52-592 to save their 2004 complaint filed after the statute of limitations has run, it is necessary to determine the date of the original action. Matos-Martorelli and MGM argue that the applicable date is December 17, 2002, the date the amended complaint in the original action was filed, naming them as the defendants. Aglan v. Eldin, supra, Superior Court, Docket No. CV 02 0472114. While the plaintiffs do not advocate any specific date in their memorandum, it appears that the date they are attempting to utilize is November 29, 2002, the date appearing on the original complaint brought against different defendants, Mona Eldin, the driver of the motor vehicle carrying the minor plaintiffs and Elsayed Aglan doing business as L and M Sales and Service (L and M), the owner of the motor vehicle carrying the minor plaintiffs, to toll the statutory time period.
The original complaint, dated November 29, 2002, was filed on December 11, 2002. It is unclear, though, when Eldin and L and M were originally served with process. Matos-Martorelli and MGM are not contending, however, that the original action against Eldin and L and M was untimely.
"Although § 52-592 is remedial in nature, passed to avoid hardships arising from an unbending enforcement of limitation statutes . . . it should not be construed so liberally as to render statutes of limitation virtually meaningless . . . [B]y its plain language, [§ 52-592] is designed to prevent a miscarriage of justice if the [plaintiff fails] to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor . . . Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts . . .
"Section 52-592 requires that the initial suit be commenced within the time limited by law . . . [A]n action is commenced not when the writ is returned but when it is served upon the defendant." (Citations omitted; emphasis added; internal quotation marks omitted.) Davis v. Family Dollar Store, 78 Conn.App. 235, 240-41, 826 A.2d 262 (2003), cert. dismissed, 271 Conn. 655, 859 A.2d 25 (2004).
In Davis v. Family Dollar Store, supra, 78 Conn.App. 236, the plaintiff was allegedly injured on August 9, 1997. The plaintiff attempted to commence a negligence action by delivering a writ of summons and complaint to a sheriff on August 6, 1999. Nevertheless, service was not made, and on February 21, 2000, the writ of summons and complaint were returned to the plaintiff. Id. On September 15, 2000, the plaintiff served the present action. Id. The Appellate Court upheld the trial court's grant of summary judgment for the defendant as it determined the suit was not commenced by the August 6, 1999 delivery of process to a sheriff. Id., 236-42; see also Vessichio v. Hollenbeck, 18 Conn.App. 515, 516-19, 558 A.2d 686 (1989) (Section 52-592 could not save the suit against the defendant because the suit was not brought against him in a timely manner and § 52-592 could apply only if the plaintiffs satisfied all the criteria of § 52-592). "From a very early date in this state the time when the action is regarded as having been brought is the date of service of the writ upon the defendant . . . That, in our judgment, is the sounder rule, because only thus is the defendant put upon notice to answer to the claim in court." (Citations omitted.) Consolidated Motor Lines, Inc. v. MM Transportation Co., 128 Conn. 107, 109, 20 A.2d 621 (1941).
In the present case, Matos-Martorelli and MGM were not served with the original writ, supplemental summons and amended complaint until December 18, 2002, after the two-year statute of limitations, § 52-584, had already run. Matos-Martorelli and MGM were not served, and thus not put on notice of the claims against them until the statute of limitations had run, and therefore the plaintiff does not meet the provision of § 52-592(a) that requires that the original action be commenced within the statute of limitations. Since the original action against Matos-Martorelli and MGM was not commenced in a timely manner, the plaintiffs cannot rely on § 52-592 to save the 2004 action that was commenced after the statute of limitations had run.
Matos-Martorelli and MGM next argue that the plaintiffs erroneously rely upon § 52-593. Section 52-593 provides in relevant part: "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action."
Matos-Martorelli and MGM argue that this statute applies only where a plaintiff's original action failed because the plaintiff made a reasonable and honest mistake of fact and named the wrong defendant. Matos-Martorelli and MGM assert that this statute does not apply to the plaintiffs because in the December 11, 2002 complaint, Eslayed Aglan's own business and the driver of the vehicle that carried the minor plaintiffs were the only parties named as the defendants. Matos-Martorelli and MGM further assert that since the court already determined in its decision granting the motion to strike that the plaintiffs cannot utilize § 52-593, they are now collaterally estopped from relitigating the issue.
"Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Waterbury Equity Hotel, LLC v. Waterbury, 85 Conn.App. 480, 493, 850 A.2d 259 (2004).
Matos-Martorelli and MGM argue, without citation to any case or analysis of the facts, that the plaintiffs are collaterally estopped from reasserting their claims. Because the misnomer statute cannot save the plaintiffs' claims, and the plaintiffs present no argument in response, the court need not address the collateral estoppel issue.
The plaintiffs argue that § 52-593 applies to their complaint as the original action was timely filed, albeit against the wrong parties. Because the underlying action was dismissed for failure to name the right party, the plaintiffs further assert that they are permitted to bring the present action under § 52-593. Finally, the plaintiffs also argue that the June 27, 2003 decision to strike the December 27, 2002 amended complaint was not controlling inasmuch as § 52-593 was not available to them until a judgment had been rendered.
The mistake the plaintiffs made in identifying the wrong defendants in the December 11, 2002 complaint is not the type of error that § 52-593 is meant to address. See Kronberg v. Peacock, 67 Conn.App. 668, 789 A.2d 510, cert. denied, 260 Conn. 982, 792 A.2d 1089 (2002); see also Isidro v. State, 62 Conn.App. 545, 771 A.2d 257 (2001). "Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual . . . To illustrate, § 52-593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) Kronberg v. Peacock, supra, 67 Conn.App. 672-73. As the court previously noted: "It is hard to imagine that the plaintiff Elsayed Aglan in his individual capacity as a plaintiff . . . mistakenly named his own business and the driver of his own vehicle as sole defendants, instead of Matos-Martorelli and MGM as the sole or additional defendants." Aglan v. Eldin, supra, Superior Court, Docket No. CV 02 0472114. The plaintiffs who have made legal or tactical errors in deciding whom to name as defendants should not be permitted to avail themselves of § 52-593. See Kronberg v. Peacock, supra, 67 Conn.App. 668.
The plaintiffs' mistake in naming the wrong defendants in the December 11, 2002 complaint is not the type of mistake contemplated by § 52-593, and therefore, the court need not determine whether they failed to obtain judgment in the original action because they named the wrong parties. As the plaintiffs cannot utilize either § 52-592 or § 52-593 to save their June 25, 2004 complaint, Matos-Martorelli and MGM's motion to strike all five counts of the plaintiffs' complaint is granted.
Howard Zoarski Judge Trial Referee CT Page 19325