136 Conn. App. 683
Conn. App. Ct.2012Background
- Real estate broker dispute over commercial commission; Coldwell Banker Manning Realty, Inc. and Cushman & Wakefield represented CSC in transactions.
- Plaintiff and Cushman each claimed entitlement to a commission; previously filed fraud, statutory duty, good faith, tortious interference, contract, and CT UTPA claims.
- Arbitration stayed by court; arbitrator refused to hear arbitration; trial court later stayed then moved to lift stay.
- Supreme Court remanded after ruling on arbitrability and award; in 2010 defendant movant sought dismissal for lack of standing.
- Trial court held plaintiff lacked standing due to fictitious name; court treated naming as a trade name lacking separate legal existence; dismissal followed.
- Appeal affirmed the dismissal, addressing § 52-123 cure and prejudice considerations with respect to misdescription by fictitious name.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff lacked standing due to use of a fictitious name | Plaintiff argues it used embedded true name Manning Realty, Inc. | Defendants contend the name Coldwell Banker Manning Realty, Inc. is a fictitious name; no standing | Yes; plaintiff lacked standing due to fictitious-name designation |
| Whether § 52-123 can cure misdescription of plaintiff's name | § 52-123 should cure misdescription; prejudice irrelevant | Cure allowed only for non-fictitious misdescription; prejudice may matter | No; misdescription of plaintiff as fictitious name not curable under § 52-123 |
| Whether prejudice must be considered in § 52-123 analysis | Prejudice not required to cure misdescription | Prejudice may support cure in some misdescriptions | Prejudice not controlling when plaintiff used fictitious name; dismissal proper |
| Whether use of trade name constitutes misdescription or concealment of identity | Trade name embedded in true corporate name should not bar action | Trade name constitutes fictitious entity concealing true party; no cure | Trade name constituted fictitious entity; lacked standing |
Key Cases Cited
- America’s Wholesale Lender v. Pagano, 87 Conn. App. 474 (2005) (misnaming and trade name issues; §52-123 not extending to fictitious self-name in action)
- Dyck O’Neal, Inc. v. Wynne, 56 Conn. App. 161 (1999) (typographical/description error; amendable designation)
- Young v. Vlahos, 103 Conn. App. 470 (2007) (circumstantial error; not a fictitious-name case)
- Bayer v. Showmotion, Inc., 292 Conn. 381 (2009) (prejudice considerations; §52-123 treatment varied by context)
- Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392 (1995) (amendment practice to name proper defendant; not a subject-matter jurisdiction issue)
- America’s Wholesale Lender v. Pagano, 87 Conn. App. 477 (2005) (trade name regulation context; misnaming as substantive; not amenable to cure for fictitious self-name)
- Young v. Vlahos, 103 Conn. App. 476 (2007) (distinguishes circumstantial vs. substantive naming error)
- Buxton v. Ullman, 147 Conn. 48 (1959) (use of legal names vs. fictitious names guidance)
- Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542 (2011) (subject-matter jurisdiction and standards of review)