Richard Smith et al. v. Mark Mattei et al. (2011)

RULINGS ON ENTRIES # # 168, 170, 171 ORDERS RE ENTRIES # # 175, 178, 182, 186

This action was commenced by Richard Smith and Kathleen Smith individually by a complaint dated March 14, 2007 against the defendants Mark Mattei and Shelley Mattei (Mattei defendants).   The complaint was amended on July 21, 2008 to add four additional defendants who had previously been impleaded by the Mattei defendants.   On October 15, 2008, the plaintiffs filed a revised complaint.   In the first three complaints, the plaintiffs alleged that they owned property located at 6 Blue Hills Road, North Haven, Connecticut which was damaged as a result of water runoff from property located at 20 Blue Hills Road owned by the Mattei defendants.   On April 14, 2011, the plaintiffs filed a Request for Leave to Amend the Complaint (# 167) “to make a technical correction to the status of the Plaintiffs and their relation to the ownership of the property that is the subject of this action [specifically] to clarify the status of Mr. Richard Smith who is trustee of the Robert & Richard Smith trust that owns certain parcels of the property and signify Mrs. Kathleen Smith as the sole owner of a certain parcel of the property located at 6 Blue Hills Road, North Haven, Connecticut.”

On April 19, 2011 the Mattei defendants filed an Objection to Request to Amend (# 168) directed to paragraph four of the Amended Complaint dated April 14, 2011 which alleges that:  “At all times mentioned herein, the Plaintiff Richard Smith as Trustee for the Robert S. and Richard F. Smith Trust owned property located at 217 Kings Highway, North Haven, Connecticut.”   The primary ground ¹ for the objection was procedural impropriety.   The Mattei defendants maintained that the complaint could not be amended to designate Richard Smith as a trustee and that either a motion to substitute under Practice Book § 9–20 or a motion to cite an additional plaintiff under Practice Book § 9–22 had to be filed.   Further, the Mattei defendants asserted that Robert S. Smith, the other trustee, appears to be a necessary party plaintiff to maintain this action.   The same grounds were raised in objections filed by the defendants Spring Road Development and Richard Vizziello (# 170) and defendants John Paul Garcia Associates, P.C. and John Paul Garcia (# 171).²

An amendment to a complaint that “is deemed to be a substitution or entire change of a party, [is] not be permitted ․ If the amendment does not affect the identity of the party sought to be described in the complaint, but merely corrects the description of that party, the amendment will be allowed ․ The test applied in order to determine whether an amendment is correcting a misnomer as opposed to substituting a new party or claim requires consideration of the following:  (1) whether the [opposing party] had notice of institution of the action;  (2) whether the [opposing party] knew he was a proper party;  and (3) whether the [opposing party] was prejudiced or misled in any way.”   (Citations omitted;  internal quotation marks omitted.)  Rossman v. Morasco, 115 Conn.App. 234, 255, 974 A.2d 1, cert. denied, 293 Conn. 932, 980 A.2d 912 (2009).   The amended complaint dated April 14, 2011 seeks to add an entirely different party, the Robert S. Smith & Richard F. Smith Trust, which owns a piece of property, located at 217 Kings Highway in North Haven, that was not previously alleged to be the subject of this litigation.³  Accordingly, on different grounds from those the defendants have asserted, the court sustains the defendants' objections to the request for leave to amend limited to the allegations of paragraph four only.⁴

On April 29, 2011, the plaintiffs filed a Motion to Substitute Plaintiff pursuant to Practice Book § 9–20 (# 175) in which they asserted that they were honestly mistaken in naming Richard Smith individually as a plaintiff and sought to substitute Richard Smith, Trustee in his place.   On May 5, 2011, the defendants Spring Road Development and Richard Vizziello filed an Objection to Motion to Substitute (# 178) (the Spring Road objection) on the ground that the plaintiffs “failed to establish that they named the wrong person by mistake or that the proposed substitution is necessary for the determination of the real matter in dispute.” ⁵  On May 12, 2011, the defendants John Paul Garcia Associates, P.C. and John Paul Garcia moved to join the Spring Road objection (# 182) and this court granted that motion on May 23, 2011 (# 182.10).   On May 18, 2011, the Mattei defendants moved to join the Spring Road objection (# 186) and this court granted the motion on May 31, 2011 (# 186.10).

General Statutes § 52–109 and Practice Book § 9–20 both provide:  “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.”  Section 52–109 is a remedial statute.  DiLieto v. County Obstetrics and Gynecology Group, 297 Conn. 105, 148, 998 A.2d 730 (2010).   The purpose of permitting substitution of parties is to further the interests of justice by correcting “any defect in a prior pleading concerning the identity of the real party in interest.   In the context of analogous rules of federal civil procedure, it has been observed that ‘[w]here the change is made on the plaintiff's side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading.’   F. James & G. Hazard, Civil Procedure (2d Ed.1977) § 5.7, pp. 167–68.  ‘As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added ․’ 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1501, pp.   154–57 ․” Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn.App. 80, 84–85, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993).

In DiLieto v. County Obstetrics and Gynecology Group, supra, 297 Conn. 151, the court concluded that “[u]nder § 52–109, substitution is permitted only when the trial court determines that the action was commenced in the name of the wrong plaintiff ‘through mistake,’ which properly has been interpreted to mean an honest conviction entertained in good faith and not resulting from the plaintiff's own negligence ․” (Internal quotation marks omitted;  citation omitted.)   The court must make that determination as a matter of fact.

The defendants dispute that the plaintiffs have established that the action was commenced in Richard Smith's name individually by mistake within the meaning of § 52–109.   The court has reviewed the affidavits and exhibits that the plaintiffs have submitted in support of their motion to substitute and concludes that they are insufficient to make that determination.   If the plaintiffs decide to pursue the motion to substitute, the court must conduct an evidentiary hearing to determine whether the failure to name Richard Smith as trustee for the Robert S. Smith and Richard F. Smith Trust as plaintiff at the time this action was commenced resulted from Richard Smith's negligence, that is, whether he used due care to ascertain which property was allegedly affected by the water runoff and the legal title in which that property was held.

In sum, the court sustains the defendants' objections (# # 168, 170, 171) to the plaintiffs' request for leave to amend with respect to the allegations of the fourth paragraph of each count of that complaint only.   The court continues the motion to substitute (# 175) and the objections to it (# 178, 182, 186) for an evidentiary hearing to take place on July 11, 2011 at 11:00 a.m. unless the motion to substitute is withdrawn on or before June 21, 2011.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. The objection also asserted that the request to amend was untimely in light of a June 22, 2011 trial date..  FN1. The objection also asserted that the request to amend was untimely in light of a June 22, 2011 trial date.

FN2. The objections (entries # # 168, 170, 175) appeared on the May 16, 2011 non-arguable short calendar..  FN2. The objections (entries # # 168, 170, 175) appeared on the May 16, 2011 non-arguable short calendar.

FN3. The court has examined the allegations of the first three complaints and cannot find any allegation that references either 217 Kings Highway, North Haven, Connecticut or “the Smith farm” as the subject of this litigation.   The only property identified in each complaint is alleged to be located at 6 Blue Hills Road, North Haven, Connecticut..  FN3. The court has examined the allegations of the first three complaints and cannot find any allegation that references either 217 Kings Highway, North Haven, Connecticut or “the Smith farm” as the subject of this litigation.   The only property identified in each complaint is alleged to be located at 6 Blue Hills Road, North Haven, Connecticut.

FN4. There was no objection to the amendment of paragraph three which clarifies that the property located at 6 Blue Hills Road, North Haven, Connecticut is owned by the plaintiff Kathleen Smith..  FN4. There was no objection to the amendment of paragraph three which clarifies that the property located at 6 Blue Hills Road, North Haven, Connecticut is owned by the plaintiff Kathleen Smith.

FN5. The motion to substitute (# 175) and the Spring Road objection (# 178) appeared on the May 16, 2011 non-arguable short calendar..  FN5. The motion to substitute (# 175) and the Spring Road objection (# 178) appeared on the May 16, 2011 non-arguable short calendar.

Lager, Linda K., J.