5 Conn. App. 427 | Conn. App. Ct. | 1985
This appeal arises out of the trial court’s judgment for the defendants in an action for money due on a lease of telephone equipment. The trial court held that the plaintiff, as collection agent for the lessor, First National Bank of Boston, did not have standing to sue the defendants in its own name. We agree.
Paragraph one of the plaintiff’s revised complaint alleged that: “The plaintiff, Second Exeter Corporation, is a Massachusetts corporation authorized to do
With regard to the plaintiff’s first claim of error, Practice Book § 160 provides that “[i]f the defendant intends to controvert the right of the plaintiff to sue ... in any . . . representative capacity, ... he shall deny the same in his answer specifically. ” (Emphasis added.) Practice Book Form 105.4 further demonstrates that the proper way to dispute a party’s representative capacity is to state that “[t]he defendant denies that the plaintiff is . . . [the representative of the true party in interest].” (Emphasis added.)
Further, Practice Book § 164 distinguishes between those cases where a special defense is required in contradistinction to those where a simple denial, whether general or specific, is sufficient. That rule provides in
The defendants specifically denied the paragraph of the complaint which contained the plaintiff’s allegation of capacity to sue. Practice Book § 129 provides that allegations in a pleading are deemed to be admitted unless denied by the adverse party or “unless he avers that he has not any knowledge or information thereof sufficient to form a belief.” “The pleading of no knowledge or information to these allegations is in effect a denial.” Postemski v. Watrous, 151 Conn. 183, 185, 195 A.2d 425 (1963); see also Ruda v. McKinstry, 162 Conn. 268, 271, 294 A.2d 318 (1972).
As to the second claim of error, the plaintiff argues that as a collection agent it had a fiduciary duty to its principal analogous to the duty of a trustee to the beneficiary of a trust. Consequently, the plaintiff argues that like a trustee, whose duty provides him with standing to sue in his representative capacity, the collection agent’s accountability should clothe him with a similar standing and authority.
This argument, however, is fatally flawed. The trustee’s standing to sue arises out of its legal title to the
Similarly, the assignee of a chose in action may sue in his own name because he stands in the shoes of the assignor. Leonard v. Bailwitz, 148 Conn. 8, 13, 166 A.2d 451 (1960); State v. Parker, 112 Conn. 39, 51, 151 A. 325 (1930); Wiser v. Clinton, 82 Conn. 148, 152, 72 A. 928 (1909). Furthermore, the trustee of an express trust and an assignee of a chose in action have been given the statutory right to sue in their own respective capacities. General Statutes §§ 52-106, 52-118. We conclude that the plaintiff in the present case did not have standing to bring the present action.
There is no error.
In this opinion the other judges concurred.
It should be noted that the trial court incorrectly characterized this response as a “general denial.” A general denial, as exemplified by Practice Book Form 105.2, is a single simple statement in which the defendant denies all of the allegations of a complaint. In contrast, a specific or special denial speaks to a single allegation or a particular paragraph of the complaint.
Our conclusion is supported by the analogous situation of consumer collection agents who are expressly prohibited from suing on behalf of creditors in the case of consumer debts. General Statutes § 42-131 (a).