RYE HARRISON VETERINARY HOSP. v. GRBIC, No. CV 10-6011312 S (Nov. 1, 2011)

BELLIS, J.

FACTS

The plaintiff, Rye Harrison Veterinary Hospital, commenced this action for debt collection against the defendant, Mike Grbic d/b/a Just Puppy Tails, Inc., by service of process on June 30, 2010. On July 15, 2010 an appearance as well as an answer and special defenses were filed by Mike Grbic, pro se. Counsel filed an appearance on behalf of the defendant on March 10, 2011.

The facts, as the plaintiff alleges them in its complaint, are as follows. On or about November 9, 2007, through July 14, 2008, the plaintiff provided veterinary services for pets belonging to the defendant. The plaintiff has demanded payment for services, but the defendant has refused or neglected to pay the outstanding balance. The outstanding balance for services is in the amount of $10,702.76.

The defendant filed the present motion to dismiss on April 5, 2011. The plaintiff filed its objection to the motion to dismiss on August 1, 2011, and the parties presented argument on the motion at short calendar on August 1, 2011. In response to the court's request at short calendar, the plaintiff filed a supplemental memorandum in further opposition to the motion to dismiss on August 2, 2011, and, on October 13, 2011, the defendant filed a reply memorandum.

DISCUSSION

Practice Book § 10-31 provides: "(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts CT Page 22876 not apparent on the record." "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31(a)." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005).

"Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). "[I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 651-52.

"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., supra, 294 Conn. 214.

I CT Page 22877

The defendant moves to dismiss the action on the ground that "[t]he court does not have subject matter jurisdiction over this matter because the [d]efendant and the [p]laintiff are not proper parties to the instant action." First, the defendant argues that the plaintiff does not have standing to pursue this action against him because the plaintiff "has misrepresented [the defendant's] name." Second, the defendant argues that Grbic is not the principal of Just Puppy Tails, Inc., but his wife is, and that the defendant neither entered into an agreement nor guaranteed payment to the plaintiff, and therefore Grbic is not personally liable. Third, the defendant argues that the proper defendant is a corporate entity, Just Puppy Tails Inc., not the individual Mike Grbic d/b/a Just Puppy Tails, Inc.

In response, the plaintiff counters in its objection to the motion that the defendant mistakenly raises the issue of standing. The plaintiff argues that it "has a personal and legal interest in the debt it is attempting to collect and therefore has standing and is the proper party to request adjudication." In its memorandum in further support of the objection to the motion to dismiss the plaintiff argues that errors in the names of the parties do not affect jurisdiction when the correct parties were served despite a mistake as to what their proper name is.

"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 . . . Standing focuses on whether the party initiating the action is the proper party to request adjudication of the issues." (Citations omitted; internal quotation marks omitted.) Stamford Hospital v. Vega, 236 Conn. 646, 657, 674 A.2d 821 (1996). "Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006). CT Page 22878

"It appears well settled that the use of a fictitious or assumed business name does not create a separate legal entity . . . [and that] [t]he designation [d/b/a] . . . is merely descriptive of the person or corporation who does business under some other name." (Internal quotation marks omitted.) Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000). "Our Supreme Court has explained that [General Statutes] § 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer . . . in an original writ, summons, or complaint . . . When a misnomer does not result in prejudice to a party, the defect in the writ is circumstantial error." (Internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414, 885 A.2d 768 (2005). "When the correct party is designated in a way that may be inaccurate but which 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 he or she was the intended defendant . . . The issue, then, is whether a misnomer is a designation of the right party in a way which may be inaccurate but which is still sufficient for identification purposes or whether the wrong person has been designated as a party." (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, 228 Conn. 343, 350, 636 A.2d 808 (1994).

"No writ, pleading, judgment or any kind of proceeding in CT Page 22881 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." General Statutes § 52-123.

The court should consider "three factors to determine whether the error was a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice." Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995). The principles regarding misnomers and whether an incorrect name affects subject matter jurisdiction also apply to cases in which the plaintiff's name is the one misstated. See Young v. Vlahos, 103 Conn.App. 470, 476-79, 929 A.2d 362 (2007) (use of Roy Young d/b/a/ Silvermine Investors, LLC as the plaintiff's name and the defendant's admission in the answer that the plaintiff was the lessor meant that the defendant knew that Silvermine Investors, LLC was the party in interest), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008).

The plaintiff alleges in its complaint that it "provided veterinary services for the pets belonging to the Defendant . . . at the request of the defendant" and the defendant has not paid the plaintiff for these CT Page 22879 services. Through these allegations the plaintiff pleads that it has a specific personal and legal interest in recovering an unpaid balance owed to the plaintiff, and its personal interest is injured by the conduct alleged in the present action, and that the defendant refuses or neglects to pay the balance.

The court must address whether the plaintiff's use of the names Mike Grbic d/b/a Just Puppy Tails, Inc. and Rye Harrison Veterinary Hospital, as opposed to Mike Grbic, and Rye Harrison Veterinary Hospital, P.L.L.C., respectively, amounts to the use of misnomers which is a circumstantial defect. The defendant filed an appearance and answer and special defenses in the present action which speaks to the three elements used to determine whether a mistake is a misnomer. In his answer, Mike Grbic denies each allegation made in the complaint, and then states the following: "Gary Arnell, the owner of Rye Vet, did work for some dogs without Mike Grbic's permission. Mike Grbic painted Gary Arnell's house inside and out as a barter for vet services and never got compensated." This response shows that Mike Grbic had actual notice of the action, as he filed an appearance and responded to the complaint in a way that shows his knowledge of and involvement in the transaction at issue. It also establishes that the defendant knew that the plaintiff intended to bring suit against him, as he provides explanations for why he would not be liable for the debt. Finally, there is no evidence that the defendant was misled about the present action in a way that would prejudice him. The answer and special defenses also demonstrates that the parties were not mistaken as to who the plaintiff was, and omitting " P.L.L.C." from the name of the plaintiff has not prejudiced the defendant. The plaintiff's use of the misnomers of Mike Grbic d/b/a Just Puppy Tails Inc., for the individual defendant, Mike Grbic, and Rye Harrison Veterinary Hospital for Rye Harrison Veterinary Hospital, P.L.L.C. when commencing the action does not deprive the court of subject matter jurisdiction.

II

The defendant also argues in his memorandum in support of the motion, that the court lacks jurisdiction because the parties involved are corporations with business addresses in New York and the "purported services provided occurred in the State of New York." "As such, it is clear that the State of Connecticut does not have an interest in this matter and the collection action should have been brought in the state of New York." The plaintiff responds that the defendant is a resident of the state of Connecticut and service of process was made at his residence, and therefore the court has personal jurisdiction over the defendant. The plaintiff further argues that the parties agreed at short CT Page 22880 calendar that there is no claim of lack of personal jurisdiction here, only subject matter jurisdiction. The plaintiff then argues that the fact that the services at issue were performed in New York does not have any bearing on standing or the court's subject matter jurisdiction. In its reply memorandum, the defendant asserts that the plaintiff identified the defendant as it did with the intention to gain jurisdiction in Connecticut.

"It is black letter law that [t]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction . . . When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). Practice Book § 10-32 provides "[a]ny claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of services of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30."

Practice Book § 10-30 provides in relevant part, "[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ."

If there is any dispute over the court's personal jurisdiction over the defendant, the defendant waived his right to pursue this challenge to jurisdiction because he did not file a motion to dismiss within thirty days of July 15, 2010, when he filed his appearance, nor did he file the motion to dismiss before filing his answer and special defenses as § 10-32 requires. As well, the return of service which states service was made at the defendant's abode in Connecticut is evidence of personal jurisdiction which has not been rebutted. As previously noted, the parties agreed there is no personal jurisdiction issue. The defendant does not provide any case law explaining how the location of the parties involved and the location where services at issue were performed would affect the court's subject matter jurisdiction over the action. No legal authority supporting such an argument could be found. The location of businesses and services at issue does not deprive the court of subject matter jurisdiction and therefore, this ground cannot support the present motion to dismiss.

CONCLUSION

For the foregoing reasons the defendant's motion to dismiss is denied.