Gale Hylton v. Joseph Dibrino et al (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101)

Before the court is a motion to dismiss for lack of subject matter jurisdiction filed on behalf of Joseph DiBrino, who, for causes unrelated to matters raised in this action, died on March 28, 2009.   For reasons more fully set forth herein, this court grants the motion to dismiss.

The plaintiff attempted to initiate this lawsuit against both Joseph DiBrino and Charlotte DiBrino by service of process on December 16, 2009.   The return of service appended to the complaint stated that the marshal served the “following within named defendants [each] with a true and attested copy of the original [writ, summons and complaint] ․ Joseph DiBrino-personal in-hand service was made upon Charlotte DiBrino on behalf of the Estate of Joseph DiBrino, at 1556 State Street, New Haven.”

On February 11, 2010, a motion to dismiss (# 101) was filed on behalf of Joseph DiBrino on the ground that the court lacks subject matter jurisdiction over the claims against him because he died before the plaintiff commenced this action.   On February 23, 2010, the plaintiff filed a motion to substitute the administrator of the defendant's estate, Gary Cooper, as the party defendant. (# 106.)  With her motion to substitute, the plaintiff also filed an amended complaint (# 107) pursuant to Practice Book § 10-59.¹  In this amended pleading, the plaintiff amended Count One to change the defendant to “Gary Cooper, Administrator for the Estate of Joseph DiBrino, et al.”   Further, in the amended complaint the plaintiff added the following:  “The Defendant, Joseph DiBrino, passed away in 2009, in New Haven, Connecticut ․ In 2010, an estate was opened in New Haven Probate Court in the State of Connecticut, on behalf of the above mentioned Defendant and Gary Cooper was appointed administrator of said estate.”   On March 1, 2010, the court granted the plaintiff's motion for an extension of time to respond to the motion to dismiss.   The court, Blue, J., granted the plaintiff's motion to substitute over the defendant's objection on March 8, 2010.²  On April 1, 2010, the plaintiff filed an Objection to the motion to dismiss. (# 115.)  The court heard oral argument on the motion to dismiss at the short calendar on April 5, 2010.

“The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter ․” Practice Book § 10-31(a).  “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ․ [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”  (Internal quotation marks omitted.)  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009).

There is no factual dispute that Joseph DiBrino died before the commencement of this action.   Because of this, the movant argues that this proceeding is void ab initio because of the nonexistence of an entity who can be a party to a suit and therefore, the court is without jurisdiction to grant a motion to substitute or to cite the estate as a party.   The plaintiff argues that the movant's position places form over substance;  and that a misnomer does not deprive the court of subject matter jurisdiction pursuant to General Statutes § 52-123.   Further, she argues that she may substitute the decedent's executor or administrator as the defendant pursuant to General Statutes § 52-599(b).

“[A]n action begun and prosecuted against a defendant who is dead when it was begun is null and void ․” O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 673 (1933).  “By its very terms, an action at law implies the existence of legal parties;  they may be natural or artificial persons, but they must be entities which the law recognizes as competent ․ [A] dead person is a nonexistent entity and cannot be a party to a suit.   Therefore, proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity.   Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court.”  (Citation omitted;  internal quotation marks omitted.)  Noble v. Corkin, 45 Conn.Sup. 330, 332-33, 717 A.2d 301 [21 Conn. L. Rptr. 547] (1998).   See also Fotheringhame v. New Haven, Superior Court, judicial district of New Haven, Docket No. 06 5007577 (June 7, 2007, Robinson, J.) (granting motion to dismiss when defendant died prior to initiation of action);  Freeman v. Brown, Superior Court, judicial district of New London, Docket No. CV 4003549 (June 13, 2006, Hurley, J.T.R.) (same);  Rodriguez v. Danek, Superior Court, judicial district of New Britain, Docket No. CV04 4001947 (September 14, 2005, Shaban, J.) (40 Conn. L. Rptr. 25, 26) (same).

In the present case, the defendant died several months prior to the service of the writ, summons and complaint.   Therefore, the court does not have jurisdiction over this matter, unless there is some other legal basis upon which to make a finding of jurisdiction.

Rather than consider this an action against a non-existent entity, the plaintiff urges the court to treat this case as a misnomer case, in which she merely named the wrong party.   She relies on § 52-123 for the proposition that a misnomer does not deprive the court of subject matter jurisdiction, claiming that “[a]lthough the decedent is not a legal entity, the improper heading is merely a circumstantial error capable of revision through amendment of the complaint.”  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.”

“When the correct party is designated [in the writ, summons or complaint] in a way that may be inaccurate but [that] is still sufficient for identification purposes, the misdesignation is a misnomer.   Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew [it] was the intended defendant.   This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party.   The issue, then, is whether a misnomer is a designation of the right party in a way [that] may be inaccurate but [that] is still sufficient for identification purposes or whether the wrong person has been designated as a party.”  (Internal quotation marks omitted.)  Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414-15, 885 A.2d 768 (2005).

In the present case, per the amended complaint, “[i]n 2010, an estate was opened in New Haven Probate Court in the State of Connecticut, on behalf of the ․ [d]efendant and Gary Cooper was appointed administrator of said estate.”   Thus, notwithstanding the marshal's characterization on the return of service, Charlotte DiBrino could not, legally, accept service “on behalf of the Estate of Joseph DiBrino” on December 16, 2009 because no such entity existed on that date.   Naming the decedent and not his estate is not merely a misnomer that can be disregarded or corrected pursuant to § 52-123 because the entire proceeding against the decedent was void ab initio and did not invoke the jurisdiction of the court.

The plaintiff also contends that § 52-599(b) allows her to substitute the decedent's executor or administrator as the defendant.  Section 52-599(a) provides:  “A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.”  Section 52-599(b) provides, in relevant part:  “A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent ․ If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”

Section 52-599 does not apply to the facts in this case because the action was initiated prior to the initiation of the action.   See, Noble v. Corkin, supra, 45 Conn.Sup. 333.   See, also Rodriguez v. Danek, supra, 40 Conn. L. Rptr. 25.   See also Marcejonis v. Torres, Superior Court, judicial district of Middlesex, Docket No. CV 99 0090735 (April 17, 2002, Shapiro, J.);   Jones v. Lawler, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0174667 (February 14, 2002, Adams, J.) (31 Conn. L. Rptr. 416, 418).

For these reasons, the court grants the motion to dismiss.

Robinson, A., J.

FOOTNOTES

FN1. Practice Book § 10-59 provides:  “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return date.”   The return date was January 26, 2010..  FN1. Practice Book § 10-59 provides:  “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return date.”   The return date was January 26, 2010.

FN2. The defendant's motion to reargue the court's decision to grant the plaintiff's first motion to substitute was also heard at oral argument on April 5, 2010.On March 19, 2010 the plaintiff filed a second motion to substitute the defendant, in which it sought to replace Gary Cooper, the temporary fiduciary, with Nicholas DiBrino and Joseph N. DiBrino, who, according to the order of the probate court attached to the motion, are the successor cofiduciaries of the estate.   On that date, the plaintiff also requested leave to amend the complaint to “more completely and accurately name the defendant.”   On March 25, 2010, the defendant filed a memorandum in opposition to the motion to substitute.The resolution of the issue before the court necessarily resolves these pending motions as well..  FN2. The defendant's motion to reargue the court's decision to grant the plaintiff's first motion to substitute was also heard at oral argument on April 5, 2010.On March 19, 2010 the plaintiff filed a second motion to substitute the defendant, in which it sought to replace Gary Cooper, the temporary fiduciary, with Nicholas DiBrino and Joseph N. DiBrino, who, according to the order of the probate court attached to the motion, are the successor cofiduciaries of the estate.   On that date, the plaintiff also requested leave to amend the complaint to “more completely and accurately name the defendant.”   On March 25, 2010, the defendant filed a memorandum in opposition to the motion to substitute.The resolution of the issue before the court necessarily resolves these pending motions as well.

Robinson, Angela C., J.