Opinion
No. CV 04-4002606
April 28, 2005
MEMORANDUM OF DECISION
The plaintiffs have filed a six-count complaint against the defendant Victor Depamphilis alleging negligence and reckless conduct. The defendant has filed a motion to dismiss based on subject matter jurisdiction pursuant to Connecticut Practice Book § 10-31 et seq. alleging that the summons improperly names minors as plaintiffs. The defendant points to the summons where two additional plaintiffs are identified as "Ryan Megan, PPA and Ryan Matthew, PPA." In his brief the defendant alleges that Megan Ryan and Matthew Ryan, both minors, cannot bring a cause of action against the defendant; that contrary to the general rule, a child may bring a civil action only by a guardian or next friend who's responsibility is to ensure that the interests of the ward are well represented and he seeks to have all the claims dismissed as to Ryan, Megan PPA and Ryan, Matthew PPA.
The plaintiffs have filed an objection to the defendant's motion to dismiss together with a brief in which they state that the motion to dismiss is based upon a clerical error in the summons in listing Ryan, Megan PPA and Ryan, Matthew, PPA. The plaintiffs claim that the complaint properly lists Susan Ryan, the mother PPA for both the plaintiff minors and that the clerical error is correctable as a matter of right pursuant to Conn. Gen. Stat. § 52-72 and note that a motion to amend the summons was filed on the same date as the objection.
Thereafter, the defendant filed an objection to the plaintiffs' motion to amend the clerical error on the summons claiming that the plaintiff's motion is premature as there is a pending motion to dismiss; that the plaintiffs have failed to comply with Conn. Gen. Stat. § 52-72 in not having served an amended summons; that the plaintiffs are seeking to substitute a whole new party rather than correct a misnomer in their motion to amend the clerical error and that the named plaintiffs in the amended summons are not proper parties as a matter of law.
It is evident from the summons filed in this case that three plaintiffs are intended. Susan Ryan is named as the first plaintiff. There is then an additional plaintiff which the summons lists as Ryan, Megan, PPA and on the second page an additional plaintiff listed as Ryan, Matthew, PPA but the name of the next friend is missing as to these. All three plaintiffs have the same home address.
The key to the solution of this technical problem appears to be a proper understanding of the abbreviation "PPA." It appears in legal literature in two different languages, Latin and French. In Latin it is per proxima amici and in French it is per prochein ami. In either language it is "through or by the next friend." It most commonly appears in cases involving a minor. It has long been an established practice not only in this state but elsewhere that a minor may bring a civil action only by a guardian or next friend. Lametta v. Connecticut Light Power Co., 139 Conn. 218; Collins v. York, 159 Conn. 150 (1970). As mentioned above, the names of Megan and Matthew appear in the summons with a PPA. However, the name of the next friend is missing.
[T]he interpretation of pleadings is always a question of law for the court . . . a modern trend which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded and do substantial justice between the parties.
Venedetto v. Wamat, 79 Conn.App. 139 (2003).
The complaint has a correct heading listing Susan D. Ryan and then, Megan Ryan PPA by Susan Ryan, mother and next best friend and Matthew Ryan, PPA by Susan Ryan, mother and next best friend. However, the third count which speaks in negligence mentions the next friend first, Susan D. Ryan, PPA, for Megan Ryan v. Victor Depamphilis. The fourth count which speaks in recklessness is labeled Susan D. Ryan, PPA for Megan Ryan v. Victor Depamphilis. The fifth count which speaks in negligence is labeled Susan Ryan, PPA, Matthew Ryan, PPA v. Victor Depamphilis. The sixth count which speaks in recklessness is the same as the label in the fifth count.
The first paragraph of each of these counts correctly states: "The plaintiff (. . . Ryan), is a minor and brings this action by plaintiff, Susan D. Ryan, the plaintiff (. . . Ryan's) parent and next friend."
The process in this case, summons and complaint, when read in their entirety can leave no doubt that there are three plaintiffs in this case and one of them is Susan Ryan and that the other two are Megan Ryan and Matthew Ryan, the action being brought for each of them by their parent and next friend. It is also clear that these are minors. All this is clear to the defendant who in his brief with respect to the motion to dismiss refers to the plaintiffs in the plural and to the two children as minors.
Conn. Gen. Stat. § 52-123 entitled Circumstantial Defects Not To Abate Pleadings reads as follows:
No writ, pleading, judgment or any kind of proceeding in 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 courts.
The persons and cause in this case are clear and understood by the court and defendant although somewhat confusing in description. Such a defect is circumstantial and the plaintiffs are entitled to correct same per § 52-123. In Andover Limited Partnership v. Board of Tax Review, 232 Conn. 392 (1995), the individual plaintiff appealed the action of the defendant Board of Tax Review in the Town of West Hartford. The plaintiff named the Board of Tax Review as the defendant and failed to name the Town as a party. The Town filed a motion to dismiss the appeal claiming that the Town was a necessary party and that the plaintiff's failure to name the Town constituted a defect that deprived the trial court of subject matter jurisdiction. The plaintiff claimed it has a right pursuant to Section 52-123 to amend the citation in order to name the Town as a defendant. The trial court granted a motion to dismiss on the basis that the failure to include the Town was a jurisdictional defect that was not curable by amendment. Our Supreme Court held that the misnomer was a circumstantial defect but the plaintiff was entitled to correct by amendment per § 52-123 which permits a plaintiff to pursue a complaint that contains a circumstantial defect if the proper defendant had actual notice of the cause of action and knew or should have known that it was the intended defendant. In this case the court held:
We further conclude that because the language of § 52-123" — [N]o writ shall be . . . set aside . . . for any kind of circumstantial errors, mistakes, or defects, if the person and the cause may be rightly understood and intended by the court" — is mandatory rather than directory, the plaintiff was entitled to correct its error by amendment.
In Western Boot and Clothing v. L'Enfance Magique, 81 Conn.App. 486 (2004), a case in which the defendant claimed that the plaintiff had no standing to institute the action because it was a stranger to the proceeding the name of the entity that issued the notice to quit being different from that of the plaintiff appearing on the writ, summons and complaint, the discrepancy was a mere circumstantial defect and could not defeat the plaintiff's cause of action. In this case as in Andover Limited Partnership v. Board of Tax Review, 232 Conn. 392 (1995), the court points out that § 52-123 is a remedial statute and therefore must be liberally construed in favor of those whom the legislature intended to benefit and replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer in the original writ, summons or complaint. The court further holds that when a misnomer does not result in prejudice to a party, the defect in the writ is a circumstantial defect. Id. 400-01.
In the instant case it is clear that the defendant is aware of who the plaintiffs are and that two of them are minors and that they are represented by their mother as next friend. And, in the opinion of this court, there is no prejudice to the defendant and the misnomer is purely a circumstantial defect which can be amended.
The plaintiff in response to the motion to dismiss has invoked Conn. Gen. Stat. § 52-72 which provides in pertinent part:
Sec. 52-72. Amendment of Process (a) Any court shall allow a proper amendment to civil process which has been returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.
(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from date of service, as if originally proper in form.
The Supreme Court in Concept Associates Ltd. v. Board of Tax Review, 229 Conn. 618 (1994), declared that § 52-72 is a remedial statute and must be liberally construed to achieve its intended purpose and further declared that said section is mandatory rather than directory and granted the plaintiff's motion to amend.
The defendant maintains that the court should dispose of the motion to dismiss before taking up the matter of the motion to amend the complaint. He maintains that the filing of the motion to amend is the appointment of a substitute plaintiff. The court disagrees. In the opinion of this court this is merely an attempt to correct a misnomer and does not attempt to change a party to the case. Gillian v. Atlantic Coast Cable, Superior Court Judicial District of Fairfield at Bridgeport, docket no. 323793; Weiss v. Weiss, Superior Court, docket no. 0065932S. In each of the cases cited above which involve a correction of a circumstantial error, the court denied a motion to dismiss and permitted an amendment of the complaint. In America's Wholesale Lender v. Pagano, 87 Conn.App. 474 (2005), the court stated:
We recognize that this court as well as our Supreme Court has said in numerous circumstances that the mislabeling or misnaming of a defendant constitute a circumstantial error that is curable under § 52-123 if it did not result in prejudice to either party.
See, e.g., Andover Limited Partnership I v. Board of Tax Review, supra (permitting plaintiff to amend citation in order to name Town instead of Board of Tax Review a defendant); Mussier v. Department of Transportation, 228 Conn. 343 (1994) (permitting action to stand when someone has indicated action against State instead of action against the Commissioner of Transportation and the Commissioner of Transportation received actual notice). This is true even when the plaintiff used only the defendant's tradename and not the defendant's legal name. See, e.g., CT Page 7766 Motiejaitis v. Johnson, 117 Conn. 631 (1933) (permitting plaintiff to substitute individual for a nonexistent corporation under which individual is doing business); World Fire and Marine Ins. Company v. Alliance Sandblasting Co., 105 Conn. 640 (1927) (permitting plaintiff to amend writ to include individual doing business as named defendant).
As pointed out above, both § 52-123 and § 52-72 have been declared by our Supreme Court to be mandatory. It is therefore the opinion of this court that the motion to dismiss must be denied since the policy of the law today is to correct not to dismiss this type of defect and permit plaintiffs to amend, by means of § 52-72. The best example of how the minor plaintiffs in this case should be designated can be found in Botelho v. Curtis, 28 Conn.Sup. 493, in which the court states:
The next friend of an infant plaintiff cannot maintain a suit in his own name but, the suit must be brought in the name of the infant. The process must run in the name of the infant by his next friend and not in the name of the next friend acting for the infant.
As stated above, the plaintiffs have filed a motion to amend. In doing so, they have again confused the designation of the minor children as plaintiffs and also have failed to follow the dictates of § 52-72 which requires that they file a request to amend and append the amendment. In their amendment they have placed the name of the mother before that of the children and have not filed a copy of an amendment in accordance with §§ 10-59a(3). As stated in Coppolla v. Coppolla, 43 Conn. 657 (1998), in referring to the liberal construction accorded to § 52-72 and quoting from Concept Associates, supra, and Andrew Ansaldi Company v. Planning Zoning Commission, 207 Conn. 67 (1988),
The legislature, in enacting § 52-72, expressed an attempt to reject a draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date.
In accordance with § 52-123 and § 52-72, both of which have been declared to be mandatory, the court denies the current motion to amend but orders the plaintiffs to file a second request to amend and an amendment correcting the process according to Botelho v. Curtis, supra, and § 10-59a(3) of the Practice Book.
Accordingly, the motion to dismiss is denied and the plaintiff minor children are ordered to amend the summons and complaint.
BY THE COURT
Hale, JTR