Just Restaurants v. Thames Restaurant Group, LLC ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
JUST RESTAURANTS v. THAMES RESTAURANT
GROUP, LLC
(AC 38493)
DiPentima, C. J., and Mullins and Bear, Js.
Submitted on briefs January 6—officially released April 4, 2017
(Appeal from Superior Court, judicial district of New
London, Vacchelli, J.)
Scott M. Schwartz filed a brief for the appellant
(defendant).
Renee Marie Houle filed a brief for the appellee (sub-
stitute plaintiff).
Opinion
PER CURIAM. The defendant, Thames Restaurant
Group, LLC, appeals from the judgment of the trial court
rendered in favor of the substitute plaintiff, John Russo,
doing business as Just Restaurants Business Brokers.
The dispositive issue is whether the trial court lacked
subject matter jurisdiction over this action. We agree
with the parties that the action was commenced by the
named plaintiff, Just Restaurants, using a fictitious or
assumed business name, or a trade name. Under our
law, that name did not create or encompass a person or
entity with a legal existence, and, therefore, the named
plaintiff had had no capacity to bring an action. The
court thus lacked subject matter jurisdiction over its
complaint and the action. Accordingly, we reverse the
judgment of the trial court and remand the case with
direction to dismiss the action.
The following facts and procedural history are rele-
vant to our analysis. The named plaintiff commenced
this action with a three count complaint setting forth
claims of breach of a promissory note, unjust enrich-
ment, and a violation of the Connecticut Unfair Trade
Practice Act (CUTPA), General Statutes § 42-110a et
seq. The named plaintiff alleged in its complaint that
the defendant had purchased a business and real estate
in New London from a third party and had agreed to
pay $40,000 of the named plaintiff’s commission from
this transaction over a five year period at 5 percent
interest. The defendant filed an answer and special
defenses, including a claim that the named plaintiff was
not a legal entity and, therefore, had no capacity or
standing to bring the action. The named plaintiff denied
that special defense.1
The named plaintiff filed two motions to have ‘‘John
Russo, doing business as Just Restaurants Business
Brokers’’ named as the proper plaintiff. First, it filed a
motion to amend the complaint. Second, it filed a
motion to substitute the party plaintiff. The court
granted both motions over the objections of the
defendant.
A one day court trial occurred on September 29, 2015,
the same day that the motion to amend the complaint
and motion to substitute were granted. After hearing
testimony from Russo and Albert Farrah, a member
of the defendant, the court issued an oral decision. It
rendered judgment in favor of the substitute plaintiff
on the breach of a promissory note count, and in favor
of the defendant on the unjust enrichment and CUTPA
counts. The court awarded the substitute plaintiff
$32,328. This appeal followed.
On November 25, 2016, the substitute plaintiff filed
in this court a motion to dismiss the defendant’s appeal
pursuant to Practice Book § 66-8. Specifically, it argued
that both the trial court and this court lacked jurisdic-
tion and requested the following relief: ‘‘Therefore, the
appeal must be dismissed and the matter remanded to
the trial court so that the underlying judgment may
be opened, vacated and the action dismissed without
prejudice for lack of subject matter jurisdiction.’’
As an initial matter, we address the substitute plain-
tiff’s motion to dismiss the appeal, and his claim that
this court lacks jurisdiction over the appeal. The substi-
tute plaintiff appears to argue that because the trial
court lacked jurisdiction, this court also is without juris-
diction. Established law does not support this proposi-
tion. This court has jurisdiction to determine whether
the trial court lacked jurisdiction. State v. Johnson, 301
Conn. 630, 641–42, 26 A.3d 59 (2011); State v. Martin
M., 143 Conn. App. 140, 143–44 n.1, 70 A.3d 135, cert.
denied, 309 Conn. 919, 70 A.3d 41 (2013); Gemmell v.
Lee, 42 Conn. App. 682, 684 n.3, 680 A.2d 346 (1996);
see also Belden, Trustee v. Sedgwick, 68 Conn. 560, 567,
37 A. 417 (1897) (‘‘[t]his court has jurisdiction to review
any judgment of the Superior Court from which an
appeal is taken on the ground that it was void for want
of jurisdiction’’). Accordingly, the substitute plaintiff’s
motion to dismiss the appeal is denied.
Next, we set forth the applicable standard of review
and the relevant legal principles. ‘‘If a party is found
to lack standing, the court is without subject matter
jurisdiction to determine the cause. . . . A determina-
tion 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 contro-
versy 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.’’ (Internal
quotation marks omitted.) Coldwell Banker Manning
Realty, Inc. v. Cushman & Wakefield of Connecticut,
Inc., 136 Conn. App. 683, 685–86, 47 A.3d 394 (2012).
On appeal, the defendant argues that the court erred
by granting the motions to amend and substitute, and
by failing to dismiss the action for lack of subject matter
jurisdiction. Specifically, it contends that the named
plaintiff was a trade name and without a separate legal
existence from the substitute plaintiff. As a result, the
named plaintiff did not have the legal capacity to bring
the action solely in its name, and, therefore, the court
lacked subject matter jurisdiction. Although the substi-
tute plaintiff filed a brief opposing the defendant’s
appellate arguments, it subsequently agreed that the
trial court lacked subject matter jurisdiction. We agree
with the parties that the trial court was without jurisdic-
tion over this case.
‘‘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, [or] a trade
name, is not a legal entity; rather, it is merely a descrip-
tion 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 plain-
tiff bringing an action solely in a trade name cannot
confer jurisdiction on the court.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
America’s Wholesale Lender v. Pagano, 87 Conn. App.
474, 477, 866 A.2d 698 (2005); see also Greco Construc-
tion v. Edelman, 137 Conn. App. 514, 518–20, 49 A.3d
256 (2012); Coldwell Banker Manning Realty, Inc. v.
Cushman & Wakefield of Connecticut, Inc., supra, 136
Conn. App. 687–91; America’s Wholesale Lender v. Silb-
erstein, 87 Conn. App. 485, 486, 866 A.2d 695 (2005).
In the present case, it is undisputed that the named
plaintiff was a trade name or assumed business name
of John Russo, doing business as Just Restaurants Busi-
ness Brokers. Pursuant to our law, the initiation of the
action solely by the named plaintiff, which is not a legal
entity and does not have a separate legal existence,
cannot confer jurisdiction on the court; a dismissal,
therefore, is required.2 See Greco Construction v. Edel-
man, supra, 137 Conn. App. 518–19.
The judgment of the trial court is reversed and the
case is remanded with direction to render judgment
dismissing the action.
1
The named plaintiff neither admitted nor denied the other three special
defenses raised by the defendant.
2
We note that, in some circumstances, the court may allow for the substitu-
tion or addition of a plaintiff when an action has been commenced in the
name of the wrong person as the plaintiff. General Statutes § 52-109 provides:
‘‘When any action has been commenced in the name of the wrong person
as plaintiff, the court may, if satisfied that it was so commenced through
mistake, and that it is necessary for the determination of the real matter in
dispute so to do, allow any other person to be substituted or added as
plaintiff.’’ Given the facts of this case, this statute is inapplicable. See Ameri-
ca’s Wholesale Lender v. Silberstein, supra, 87 Conn. App. 489 (case com-
menced by trade name was improper and substitution of proper plaintiff
pursuant to § 52-109 could not cure jurisdictional defect).