Coldwell Banker Manning Realty, Inc. v. Cushman and Wakefield of Connecticut, Inc.
As explained in the 2005 Appellate Court case of America's Wholesale Lender v. Pagano, "[b]ecause the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court." In 2002, the plaintiff, Coldwell Banker Manning Realty, Inc. brought this action against the defendants, including Cushman & Wakefield of Connecticut Inc., alleging, inter alia, fraud and breach of contract arising out of a dispute over a commercial real estate commission from Computer Sciences Corporation. The court ordered this matter, and a companion case against Computer Sciences Corporation, stayed pending arbitration. The Greater Hartford Association of Realtors refused to entertain the arbitration. The trial court granted the defendants' motion to confirm the arbitrator's alleged award. The plaintiff appealed and the Supreme Court reversed the judgment and remanded for further proceedings. In 2010, the defendants filed a motion to dismiss asserting that the court lacked subject matter jurisdiction because the plaintiff had never existed as a corporate entity and lacked standing. Finding that the plaintiff sued under the name "Coldwell Banker Manning Realty, Inc." while the name of the corporation filed with the secretary of state's office is "Manning Realty, Inc.," the court granted the motion and dismissed the action. The plaintiff appealed claiming, first, that the court improperly determined that the plaintiff's name was fictitious and that the error could not be cured pursuant to C.G.S. §52-123. The Appellate Court affirmed the judgment. The plaintiff unsuccessfully argued that it was not a fictitious entity because the inclusion of the phrase "Coldwell Banker" to its name added only extraneous information. Although the plaintiff's true corporate name was embedded in the complaint, unlike the plaintiff in America's Wholesale Lender, the name used is a trade name and the plaintiff is a fictitious entity. This was not a case where the plaintiff was misnamed because of a typographical error or because of superfluous language containing the term "d/b/a," indicating a legal separation between the preceding and subsequent terms. Because the use of a fictitious name does not constitute a circumstantial error, but a substantive one not amenable to cure by C.G.S. §52-123, the plaintiff's argument that the defendants did not suffer any prejudice was not considered.