Opinion
No. 567831
January 3, 2005
MEMORANDUM OF DECISION WHETHER COURT LACKS JURISDICTION DUE TO MISNOMER OR IMPROPER SERVICE OF PROGRESS
This premise liability action arises out of the injuries that the two individual plaintiffs, Ambrocio Cabrera and Leonel Vastoncelos, sustained while working on the premises of Earth Gro, Inc. d/b/a Scott's Earth Gro (Earth Gro). At the time, the plaintiffs were employed by Temporaries of New England, Inc. (Temporaries, Inc.), which intervened the action as a plaintiff. According to the marshal's return of service, the plaintiffs commenced the action by service of process in hand to "Mark W. Kulling, Plant Manager for the within named defendant, Earth Gro, Inc. d/b/a Scott's Earth Gro, at 20 Industrial Park Road, Lebanon, Connecticut." In the four-count complaint, the plaintiffs identify the defendant as "Earth Gro, Inc. d/b/a Scott's Earth Gro" and allege that their injuries were a direct result of its negligence and reckless misconduct. In the summons, however, the plaintiffs provided the following name and address for the defendant: "Paul C. Sellew — C/O Earth Gro, Inc. d/b/a/ Scott's Earth Gro, 207 Lebanon, CT 06249." Sellew filed an appearance on December 23, 2003, and a motion to dismiss on January 22, 2004, on the ground that the court lacked personal jurisdiction over him because process was not served on him. The court, Jones, J., granted that motion "without objection" on August 30, 2004.
The motion to dismiss before the court pertains solely to Cabrera and Vastoncelos' complaint and they alone objected to the motion. Therefore, the tern "plaintiffs" as used herein refers only to the individual plaintiffs.
The motion before the court is Earth Gro's motion to dismiss, which it filed on January 22, 2004. Earth Gro asserts that the court lacks personal jurisdiction over it because it is not identified as a defendant in the writ and it was not properly served with process as required by General Statutes §§ 33-663(a) or 52-57(c). The plaintiffs object to the motion for the following reasons: 1) Earth Gro did not send a copy of its motion to Temporaries, Inc.; 2) the motion is untimely pursuant to Practice Book § 10-30 in that Earth Gro did not file it within thirty days of the date that it filed its appearance; and 3) Earth Gro was properly served. In its reply to the plaintiffs' objection, Earth Gro argues, inter alia, that the plaintiffs' procedural objections are without merit. Temporaries, Inc. has not filed an objection to the motion to dismiss.
"[A] motion to dismiss tests, inter alia, whether, on the face of the record the court is without jurisdiction." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "The grounds which may be asserted in [a motion to dismiss include] . . . lack of jurisdiction over the person . . . insufficiency of process; and . . . insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
The plaintiffs' procedural objections to the motion implicate Practice Book §§ 10-12 and 10-30. The plaintiffs first contend that the court should not consider Earth Gro's motion to dismiss because Earth Gro did not serve a copy of the motion on Temporaries, Inc. as required by § 10-12. Without deciding Earth Gro's argument that the plaintiffs lack standing to raise this issue, it is noted that on February 17, 2004, Earth Gro filed a supplemental certification admitting that it previously neglected to send a copy of its motion to dismiss to Temporaries, Inc., and certifying that it mailed a copy of its motion to the law firm representing Temporaries, Inc. on February 17, 2004. Thus, Earth Gro has substantially complied with the requirements of § 10-12. In as much as the motion to dismiss did not come before the court until August 2004, Temporaries, Inc. had an adequate opportunity to file an objection thereto. It is therefore submitted that the court should not decline to consider the motion on this basis.
Practice Book § 10-12 provides in relevant part: "(a) It is the responsibility of counsel . . . filing the same to serve on each other party who has appeared a copy of . . . every written motion . . ."
The plaintiffs also argue that the court should not consider the motion in that it is premised on lack of personal jurisdiction and was not filed within thirty days of the date Earth Gro filed its appearance, as required by § 10-30. As noted by our Supreme Court, "[a]s a defect in having the court acquire personal jurisdiction over the plaintiff, an improperly executed [writ] may be waived by the plaintiff." Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992). "[T]he filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims . . ." Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). Practice Book § 10-30 "specifically and unambiguously provides[, however,] that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days . . . Thus, thirty-one days after the filing of an appearance . . . a party is deemed to have submitted to the jurisdiction of the court." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
Practice Book § 10-30 provides in relevant part: "Any 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 . . ."
Earth Gro apparently filed its appearance on December 23, 2003, and filed its motion to dismiss on January 22, 2004. "[I]n the absence of applicable Superior Court rules . . . [t]he general rule [is] that where a period of time is to be calculated from a particular date or event, the day of such date or event is excluded from the computation." (Internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 264, 811 A.2d 693 (2003). As to the date this period expires, when a statute or rule states that a party is required to file a document "within" a period of time, our Supreme Court has noted that "[t]he meaning of `within' is `not longer in time than' . . . `not later than' . . ." (Citations omitted.) DeTeves v. DeTeves, 202 Conn. 292, 296, 520 A.2d 608 (1987). Therefore, the thirty-day period within which Earth Gro was required to file its motion to dismiss commenced on December 24, 2003, and ended on January 22, 2004, the day it filed the motion. Earth Gro did not waive its claim that the court lacks personal jurisdiction over it.
Although Earth Gro's appearance is not in the court's file and the docket sheet does not indicate that it has entered an appearance, both sides allege that Earth Gro filed an appearance on January 22, 2004.
The Superior Court has "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." Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993). On the other hand, "Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an [action] . . . Our preference is to avoid a termination of proceedings due to mere technical imperfection." (Citation omitted; internal quotation marks omitted.) Kobyluck v. Planning Zoning Commission, 84 Conn.App. 160, 166, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004).
Earth Gro first argues that the court lacks jurisdiction over it because it was not named as a defendant in the writ of summons. The plaintiffs concede that they mistakenly listed Sellew as the defendant on the writ, but assert that this was a scrivener's or a circumstantial error. Indeed, on February 17, 2004, they filed a motion to amend the writ of summons and caption of the case to change the defendant thereon to Earth Gro, Inc. d/b/a Scott's Earth Gro. Earth Gro has not filed an objection to the motion to amend.
General Statutes § 52-45a provides: "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for filing an appearance." This statute should be considered in conjunction with General Statutes § 52-123, which provides, "[n]o 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 court." Section 52-123 "replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer or misdescription in an original writ, summons or complaint." Andover Limited Partnership I. v. Board of Tax Review, 232 Conn. 392, 397-98, 655 A.2d 759 (1995). To determine whether § 52-123 applies, the court must analyze a misdesignation of a party in the writ of summons to determine whether it is a "misnomer" or a misconstruction of identity. Lussier v. Dept. of Transportation, 228 Conn. 343, 350, 636 A.2d 808 (1994). A misnomer is "a circumstantial defect anticipated by General Statutes § 52-123 that can be cured by amendment . . . 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. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party." Id. The determination of the nature of the misdesignation "is a question that may be answered only after all the circumstances have been examined." Id., 351.
In Lussier, as in the present case, the plaintiff listed the wrong defendant in the summons, but identified the correct defendant in the caption and the text of the complaint, and served the complaint at the office of the proper defendant. The court determined the error was "a defect in the summons that constitutes a misnomer and falls squarely within the purview of § 52-123." Id., 352-53. In reaching its decision, the court noted that the proper defendant was, inter alia, "served, named in the complaint caption, identified as the responsible party within the text of the complaint." Id., 352. Moreover, the court noted that the defendant, as is also true of Earth Gro, did not claim that he had not received actual notice of the action, that he did not know he was the intended defendant, or that he had been prejudiced. Id. Accordingly, the court finds that the plaintiffs' failure to list Earth Gro as a defendant on the writ of summons is a misnomer and does not, of itself, deprive the court of personal jurisdiction over the company.
It is also significant that, as previously noted, the plaintiffs filed a motion to amend the writ of summons and the trial court's caption of the case to identify the defendant as Earth Gro, Inc. d/b/a Scott's Earth Gro. Because no party filed an objection to the motion, it is deemed to have been filed with the consent of the parties pursuant to Practice Book § 10-60(a)(3). See Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 310 763 A.2d 1055 (2001) (defendant conceded to amended return date by failing to object to plaintiff's request to amend such date).
Practice-Book § 10-60(a) provides in relevant part "a party may amend his or her pleadings or other parts of the record or proceedings . . . in the following manner . . . (3) By filing a request or leave to file such amendment, with the amendment appended . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party . . ."
Earth Gro also contends that the court lacks personal jurisdiction over it because the plaintiffs did not properly serve it with process as required by General Statutes §§ 33-663(a) or 52-57(c). "Facts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
Here, the marshal's return of service indicates that he served process on Mark K. Kulling, plant manager for Earth Gro., Inc., at 20 Industrial Park Road, Lebanon, Connecticut. This, according to the plaintiffs, was sufficient service under § 33-663. Section CT Page 112 33-663(a) provides in relevant part, "[a] corporation's registered agent is the corporation's agent for service of process . . . required or permitted by law to be served on the corporation. Service may be effected by any proper officer . . . by leaving a true and attested copy of the process . . . with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state." The plaintiffs submitted the affidavit of Paula Choquette, who attests that the secretary of state's records list Paul C. Sellew as Earth Gro's agent for service and list Sellew's business address as route 207, Lebanon, Connecticut. Choquette also attested that the marshal indicated that the address is 20 Industrial Park Road, Lebanon, Connecticut. The plaintiffs, also, however, submitted the affidavit of Danielle Sebastiao, who attests that the marshal "indicated Mr. Paul C. Sellew was no longer there and the plant manager accepted service."
Earth Gro asserts that its agent for service of process as of 1991 was CT Corporation System. It did not, however, offer an affidavit in support of its assertion, and, therefore, it was not considered in the context of this motion.
Apparently in reference to Sellew's absence, the plaintiffs argue that Earth Gro did not comply with General Statutes § 33-661 by notifying the secretary of state that it had a new agent for service. They also refer to § 33-663(b), which provides that if a corporation does not have a registered agent, or its agent cannot be served, service may be made by mail. The plaintiffs do not, however, provide any evidence that the marshal used this alternative once he learned that Sellew was no longer available to accept service. "When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate." Nelson v. Stop Shop Cos., Inc., 25 Conn.App. 637, 641, 596 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991). Therefore, the plaintiffs' service of the complaint on Kulling in lieu of Sellew did not comply with § 33-663(a).
In addition, the plaintiffs do not provide any evidence that their attempt to serve Earth Gro by serving process on Kulling was in compliance with § 52-57(c). That statute provides in relevant part, "[i]n actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president . . . or its general or managing agent or manager or upon . . . the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located . . ." General Statutes § 52-57(c). As noted by the Appellate Court, "Our Supreme Court has held that in cases where constructive service of process is employed, and, `[w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.' Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983)." Nelson v. Stop Shop Cos., Inc., supra, 25 Conn.App. 642. Accordingly, the Appellate Court has held that when a plaintiff is relying on service of process on a defendant's manager to establish personal jurisdiction over a corporation under § 52-57(c), "the plaintiff's failure to offer evidence or testimony relating to the position and responsibilities of the individual accepting service on behalf of the defendant is fatal . . ." Id., 641.
As Earth Gro correctly notes, the question of whether it had actual notice of the plaintiffs' action and whether it was prejudiced by their failure to properly serve the entity are not relevant in deciding if the plaintiffs complied with the requirements of these statutes. See Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 166, 561 A.2d 931 (1989) (plaintiffs' failure to comply with statutory requirements for service of process renders action subject to dismissal regardless of prejudice or actual notice).
For the foregoing reasons, Earth Gro's motion to dismiss is granted on the ground of insufficient service.
Jones, J.