Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Conn., Inc.

136 Conn.App. 683

47 A.3d 394

COLDWELL BANKER MANNING REALTY, INC.

v.CUSHMAN AND WAKEFIELD OF CONNECTICUT, INC., et al.

No. 32925.

Appellate Court of Connecticut.

Argued Jan. 9, 2012.

Decided July 10, 2012.

Gwendolyn S. Bishop, Windsor Locks, with whom was P. Timothy Smith, for the appellant (plaintiff).

Michael P. Shea, with whom was Daniel E. Wenner, Hartford, for the appellees (defendants).

DiPENTIMA, C.J., and ALVORD and PELLEGRINO, Js.

DiPENTIMA, C.J.

The plaintiff, Coldwell Banker Manning Realty, Inc., appeals from the judgment rendered by the trial court granting the motion to dismiss filed by the defendants, Cushman & Wakefield of Connecticut, Inc. (Cushman), Joel M. Grieco and Robert E. Kelly. On appeal, the plaintiff argues that the court improperly concluded that it lacked standing. We affirm the judgment of the trial court.

The record reveals the following relevant facts and protracted procedural history. This action arises out of a dispute between real estate brokers over a commercial real estate commission, where the plaintiff and Cushman each had an agreement to represent Computer Sciences Corporation (Computer Sciences) in real estate transactions. In 2002, the plaintiff filed a complaint against the defendants alleging fraud, violation of statutory duty, breach of duty to deal in good faith, tortious interference with a contract, breach of contract and violation of General Statutes § 42–110a et seq., the Connecticut Unfair Trade Practices Act.

The court ordered that the case and a companion case, Coldwell Banker Manning Realty, Inc. v. Computer Sciences Corp., Superior Court, judicial district of Hartford, Docket No. CV–03–0825180, 2005 WL 1634357 (Conn.Super.2005) be stayed pending arbitration. The arbitrator, the Greater Hartford Association of Realtors, refused to entertain the arbitration. The plaintiff filed a motion to lift the stay. The defendants subsequently filed a motion to confirm the arbitrator's alleged award, which was granted.¹ The plaintiff appealed from the court's decisions as to the arbitrability of the dispute and the motion to confirm the award. Our Supreme Court reversed the judgment of the trial court and remanded the case for further proceedings. Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., 293 Conn. 582, 980 A.2d 819 (2009). In 2010, the defendants filed a motion to dismiss, asserting that the court lacked subject matter jurisdiction because the plaintiff had never existed as a corporate entity and, therefore, lacked standing. The plaintiff filed an objection to the motion to dismiss. The court agreed that the plaintiff lacked standing and, accordingly, granted the motion to dismiss. This appeal followed.

We first set forth the applicable standard of review and legal principles governing our analysis. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.... A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record....

“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.... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings....

“In ruling [on] 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.... If ... the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed.” (Citations omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue.... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes ... standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests....

“Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved.... The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific, personal and legal interest has been specially and injuriously affected by the [challenged action].... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected.” (Internal quotation marks omitted.) St. Germain v. LaBrie, 108 Conn.App. 587, 591–92, 949 A.2d 518 (2008). With this background in mind, we now address the plaintiff's claim on appeal.

The plaintiff claims that the court improperly concluded that it lacked standing. Specifically, the plaintiff argues that the court improperly determined that (1) the plaintiff's name was fictitious and that the error therefore could not be cured pursuant to General Statutes § 52–123 and (2) prejudice is not a meaningful consideration when a party invokes § 52–123 to correct an incorrect description in a writ of summons or complaint.

I

The plaintiff first argues that the court improperly determined that the plaintiff's name was fictitious and therefore could not be cured pursuant to § 52–123. Specifically, the plaintiff argues that it is not a fictitious entity because the inclusion of the phrase “Coldwell Banker” to its name served only to add additional, extraneous information. We disagree.

“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.... 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.... 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.” (Citations omitted; internal quotation marks omitted.) America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 477, 866 A.2d 698 (2005).

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.” “Section 52–123 is a remedial statute and therefore it must be liberally construed in favor of those whom the legislature intended to benefit.... In interpreting this statute, however, we are mindful of the broader statutory scheme. Specifically, we must compare § 52–123 with General Statutes § 52–45a, which our Supreme Court has read to require the use of legal names, not fictitious ones, when commencing an action. Buxton v. Ullman, 147 Conn. 48, 60, 156 A.2d 508 (1959) ( [t]he privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest), appeal dismissed sub nom. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961).” (Citation omitted; internal quotation marks omitted.) America's Wholesale Lender v. Pagano, supra, 87 Conn.App. at 477–78, 866 A.2d 698.

Here, the court noted that although the plaintiff sued under the name “Coldwell Banker Manning Realty, Inc.,” the actual name of the corporation that is filed with the Connecticut secretary of the state's office is “Manning Realty, Inc.” In concluding that the plaintiff's error was not amenable to cure under § 52–123, the court likened this case to America's Wholesale Lender v. Pagano, supra, 87 Conn.App. at 476–77, 866 A.2d 698, where this court dismissed an action in which the plaintiff mistakenly named itself “America's Wholesale Lender,” the trade name of “Countrywide Home Loans, Inc.,” the true party in interest. The trial court also distinguished this case from Young v. Vlahos, 103 Conn.App. 470, 475, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008), in which we declined to dismiss an action where the named plaintiffwas “Roy Young d/b/a Silvermine Investors, LLC,” but the true party in interest was “Silvermine Investors, LLC.” The court determined that the plaintiff, in naming itself “Coldwell Banker Manning...