Chris Evans dba Sparrow Industries v. Regency at Prospect et al. (2012)

Memorandum of Decision re Motion to Dismiss

Preliminary Statement

This breach of contract action arises out of an agreement between the plaintiff and the defendants whereby certain snow removal and other services were to be provided.   The defendant, REI Property and Asset Management, Inc. (REI) filed a motion to dismiss on the grounds that the named plaintiff did not have standing to bring this action, thereby implicating this court's subject matter jurisdiction.   The plaintiff objects and counters that he is the correct party to bring these claims.   For the reasons set forth below, the motion to dismiss is DENIED.

Factual Relevant to the Motion to Dismiss

The plaintiff in this case is Chris Evans, d/b/a Sparrow Industries.   The contract that is the subject of the plaintiff's claims was entered into between “Sparrow Industries” and defendants Regency at Prospect and REI Property and Asset Management, Inc. on November 12, 2010.   The contract was signed on behalf of Sparrow Industries, by Chris Evans, its “Owner.”

On February 11, 2010, Chris Evans filed a “Trade Name Certificate” with the Town Clerk for the City of Middlebury, wherein he registers his trade name or “assumed name” of Sparrow Industries.   He certifies therein that the business is located in Middlebury, Connecticut and that he is the owner.

REI filed a motion to dismiss on the grounds that Chris Evans is not a party to the contract and therefore does not have standing to enforce the contract or bring an action based thereupon.   Evans argues that he is the proper party to the action as Sparrow Industries was his properly registered tradename.

Standard of Review

A Motion to Dismiss is the appropriate vehicle by which to assert that the court lacks jurisdiction, to include personal jurisdiction as well as subject matter jurisdiction.  P.B. § 10–30, 31;  Upson v. State, 190 Conn. 622, 624 (1983);  Sadloski v. Manchester, 235 Conn. 637, 645–46 n.13 (1995).  “The plaintiff bears the burden of establishing subject matter jurisdiction whenever and however raised.”  Fink v. Golenbock, 238 Conn 183, 199 n.13 (1996).   However, “in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   State v. Mann, 271 Conn. 300, 335 (2004).

A claimant's lack of standing implicates the court's subject matter jurisdiction.   The court's analysis will necessarily focus not on the merits of the cause of action, but rather whether the plaintiff is the proper party to bring such a claim.  Wellswood Columbia, LLC. v. Hebron, 295 Conn. 802, 809–10 (2010);  418 Meadow Street Assoc., LLC v. Clean Air Partners, LLC., 123 Conn.App. 416 (2010).

Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action ․ Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983).  (Internal quotation marks omitted.)  Tomlinson v. Board of Education, 226 Conn. 704, 717, 629 A.2d 333 (1993).   Standing focuses on whether the party initiating the action is the proper party to request adjudication of the issues.  Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985).   In general, a party does not have standing to raise rights belonging to another.  Third Taxing District v. Lyons, 35 Conn.App. 795, 798, 647 A.2d 32, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994).

Stamford Hospital v. Vega, 236 Conn. 646, 657 (1996).

Discussion

The defendant, REI, asserts that Chris Evans is not a party to the contract and therefore lacks standing to raise claims arising there under.   Evans counters this argument by demonstrating that he is the proper plaintiff because he was “doing business as” Sparrow Industries, as evidenced by the Trade Name Certificate on file with the Town Clerk of the City of Middlebury.   He is correct.

Conn. Gen.Stat. § 35–1(a) provides in pertinent part:

No person, except as provided in this subsection, shall conduct or transact business in this state, under any assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the person or person conducting or transacting such business unless there has been filed, in the office of the town clerk in the town in which such business is or is to be conducted or transacted, a certificate stating the name under which such business is or is to be conducted or transacted and the full name and principal post-office address of each person conducting or transacting such business ․ copy of any such certificate, certified by the town clerk in whose office the same has been filed, shall be presumptive evidence, in all courts in this state, of the facts contained in such certificate ․

This statute requires people doing business in this state under an assumed or fictitious name to file a trade name certification in the town in which such business is conducted prior to engaging in such business.  America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 477 (2005).   Indeed, the purpose of the trade name regulation is primarily “to protect [those doing business with the trade name] by giving them constructive notice of the contents of the trade name certificate.”  Id., quoting, Metro Bulletins Corp. v. Soboleski, 30 Conn.App. 493, 500 (1993).   The “object [of the registration requirement] is to enable a person dealing with another trading under a name not his own, to know the man behind the name, that he may know or make inquiry as to his business character or financial responsibility ․” Id., quoting, DiBiase v. Garnsey, 103 Conn. 21, 27 (1925).   The statute does not confer legal status upon the trade name and as such, a trade name is not an entity with legal capacity to sue.  America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 477 (2005).

“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.”  (Internal quotation marks omitted.)  Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985).   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.  Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000).

Id.

Here, the “presumptive evidence” is that Chris Evans conducted business under the assumed name of “Sparrow Industries” and further, that such business was conducted in Middlebury.   The contract at issue was entered into between “Sparrow Industries” and REI. It was signed by Chris Evans, its owner.   As such, Chris Evans is the proper party to bring the claims in this cause of action.

In response, REI argues Evans did not comply with the statute because the trade name certificate is required to be filed in every town in which the business is to be conducted.   The statute is unambiguous and clear.   It contains no such requirement.   The certificate may be filed in the town in which the business “is or is to be” conducted or transacted.   Sparrow Industries is located in and conducts business in Middlebury, as acknowledged in the contract itself.   Chris Evans was not required to file a trade name certificate in Prospect as well.   As our Appellate Court has noted, critics of the statute argue that it “provides only minimal protection to the public because trade name certificates are recorded in any one of the many towns across the state.”  (Emphasis added.)  Americas Wholesale Lender v. Pagano, supra, 87 Conn.App. at 477, citing, Metro Bulletins Corp. v. Soboleski, 30 Conn.App. at 503 (Schaller, J. dissenting).

The plaintiff has standing.   The motion to dismiss is denied.

K. DOOLEY, J.

Dooley, Kari A., J.