COMMERCIAL REAL ESTATE: Appellate Court Addresses Standing

In its decision released July 10, 2012, in part the Appellate Court stated:

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.

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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.

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Although this court’s statement in America’s Wholesale Lender, supra, 87 Conn. App. 480, that ‘’[a] lack of subject matter jurisdiction, however, requires dismissal, regardless of whether prejudice exists’’ may appear overly broad in light of Bayer when taken out of context, under the specific factual situation where a plaintiff uses a fictitious name for itself, the consideration of prejudice is eliminated properly from our analysis. In reaching this conclusion, we note that the court in America’s Wholesale Lender distinguished the case of Dyck O’Neal, Inc. v. Wynne, supra, 56 Conn. App. 166-67, where we concluded that the court properly permitted the substituted plaintiff to amend his designation from ‘‘Dyck O’Neal,’’ individually, to ‘‘Dyck O’Neal, Inc.’’ America’s Wholesale Lender v. Pagano, supra, 478 n.5. We reasoned that ‘‘at no time was the plaintiff’s true identity [in Dyck O’Neal, Inc.] concealed; rather, the omission of its designation amounted to an incorrect description of the plaintiff. Furthermore, the record in that case suggested the omission of the plaintiff’s designation was a typographical error in the court’s judgment file, not an action necessarily attributable to the plaintiff.’’ Id., 479 n.5. As we have stated, because we conclude that the plaintiff’s use of a fictitious name did not constitute a circumstantial error, we do not consider its argument that the defendants did not suffer any prejudice as a result of this mistake. We therefore reject the plaintiff’s claim that, under the factual circumstances of this case, prejudice is a factor in our consideration of whether § 52-123 may cure its misdescription.

To read the full text of the court ruling see:

http://www.jud.ct.gov/external/supapp/Cases/AROap/AP136/136AP433.pdf