Opinion
No. CV 08 5003809.
May 7, 2009
MEMORANDUM OF DECISION MOTION TO DISMISS NO. 109
I. BACKGROUND
This action arises out of an agreement between the defendant, Cider Hill Associates, and the plaintiff, Albert Sousa doing business as Sousa Services, to provide materials and build a retaining wall at the Cider Hill Estates Subdivision located in Cromwell, Connecticut. The defendant moves to dismiss this action and to dissolve a prejudgment remedy (PJR) in the amount of $53,000, previously granted after a hearing before the court, Aurigemma, J. The essence of the defendant's claim is that the court lacks subject matter jurisdiction to proceed in this case due to a defective summons served on the defendant. The court disagrees and the motion to dismiss is denied.
A. Procedural History
The court will briefly summarize the procedural history in the case, as it is of critical importance to the court's decision. The plaintiff initiated this action by an application for a PJR, filed with the court on January 18, 2008. The application and other statutorily required documents, including an affidavit, proposed writ, summons and complaint were served upon the defendant on January 28, 2008, and returned to court on February 5, 2008. Immediately prior to the filing of the return to court, the defendant's attorney filed his appearance in the PJR action on February 4, 2008. Although an initial hearing on the PJR was scheduled by the court for February 11, 2008, the defendant's attorney sought and was granted a continuance. Briefs were filed by the parties and the defendant attended and duly contested the plaintiff's application at an evidentiary hearing held on two consecutive days: April 28 and 29, 2008. The court, Aurigemma, J., issued a five-page written decision on August 6, 2008, granting the plaintiff's request for a PJR in the amount of $53,000.
According to the marshal's return, on January 28, 2008, the plaintiff served, inter alia, an unsigned summons and complaint. "Although the sheriff's return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). In the present case, although a copy of the unsigned, and allegedly defective, summons was filed with the initial PJR application, it is not contained within the court file's package of original materials returned to the court with the marshal's return of service upon the defendant. Therefore, the court may not conclusively find that the defendant had notice of the defective summons seven months before the signed complaint for the case in chief was subsequently filed with the court.
On August 27, 2008, the plaintiff served its signed "summons" and complaint on the defendant. The marshal returned this service to the court on September 3, 2008, all within the thirty days of the granting of the PJR as required by General Statutes § 52-278j. The summons at issue is signed and dated by the plaintiff's attorney, and contains the docket number, the names of the parties, a return date of September 16, 2008, and the judicial district in which this case is pending. Although it also includes the heading "SUMMONS" in bold face type, the body of the summons does not contain language necessary to summon a party to court. Instead, it directs the marshal to attach the defendant's property, as follows: "To the Marshal of the County of Middlesex, his deputy or either constable of the Town of Middletown GREETING:
General Statutes § 52-278j(a) provides: "If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgment remedy."
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, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable." General Statutes § 52-45b further provides for the form of such writs in relevant part, as follows: "Unless otherwise provided by rule, the forms of legal process for commencement of civil actions may be as follows:
(1) Summons for appearance before the Superior Court. To any proper officer:
By authority of the state of Connecticut, you are hereby commanded to summon A.B. of . . . (list address or last known address) to appear before the superior court for the judicial district of . . . on the . . . Tuesday of . . ., 20 . . ., the appearance not to be in person but to be made by A.B. or his attorney by filing a written statement of appearance with the clerk of the court whose address is (include street number and town) on or before the second day following the return date then and there to answer to C.D. of . . . in a civil action, in which the plaintiff complains and says . . .
(2) Writ of attachment before the Superior Court. To any proper officer:
By authority of the state of Connecticut, you are hereby commanded to attach to the value of . . . dollars the real or personal property of A.B. of . . . (list address or last known address) and him summon to appear before the superior court for the judicial district of . . . on the . . . Tuesday . . ., of 20 . . ., the appearance not to be in person but to be made by A.B. or his attorney by filing a written statement of appearance with the clerk of the court whose address is (including street number and town) on or before the second day following the return date then and there to answer to C.D. of . . . in a civil action, in which the plaintiff complains and says . . ." (Emphasis added.)
By the authority of the State of Connecticut you are hereby commanded in accordance with the accompanying order to attach to the value of $53,000.00, the goods or estate of Cider Hill Associates, LLC of 110 Court Street, Suite 1, Cromwell, Connecticut."
After more than thirty days had elapsed, the plaintiff filed a motion for default for failure to plead on October 24, 2008, pursuant to Practice Book §§ 10-8 and 10-18. The plaintiff further certified that a copy of the pleading was mailed to the defendant's counsel of record in the PJR proceedings. Although this motion was initially granted on October 28, pursuant to Practice Book § 17-32, it was later vacated by the court, Jones, J., on November 5, 2008, as the defendant had in fact filed this motion to dismiss on the very same day that the plaintiff filed his motion for default.
B. Legal Assertions of the Parties
In its memorandum of law in support of the motion to dismiss, the defendant contends that the "summons" was defective in that it failed to direct the defendant to appear in court. Instead, it is asserted by the defendant that the language used in the "summons" served only to direct a Marshal to attach the property, and therefore resulted in the failure of the plaintiff to commence this action as required by General Statutes § 52-45a. Based upon this failure to serve the proper summons, the defendant claims this court lacks subject matter jurisdiction.
It is noted that a writ of attachment and a writ of summons contain the same essential information summoning the defendant to appear in court. See General Statutes § 52-45a; Practice Book § 8-1. The distinguishing factor is that a writ of attachment also commands the officer to attach the property of the defendant. See General Statutes § 52-45b(1) and (2) in footnote 3, above.
The plaintiff counters that any insufficiency in the process served in this case does not implicate the subject matter jurisdiction of the court, and is instead a matter of personal jurisdiction. Therefore, the plaintiff claims 1) that the defendant's motion was filed more than thirty days from the return date and is untimely, (hereby waiving any defect in personal jurisdiction; 2) that no responsive pleading has been filed, thus necessitating the reinstatement of the default and 3) that the writ of attachment was properly served.
The defendant responds by asserting that the thirty-day deadline for a motion to dismiss, as set forth in Practice Book § 10-30 et seq., does not affect this court's ability to address the defendant's motion to dismiss based upon subject matter jurisdiction because, in order to commence a civil action, a writ of summons or attachment must contain certain information required by General Statutes § 52-45a. The defendant therefore claims that the motion to dismiss is properly filed because the motion addresses the court's subject matter jurisdiction pursuant to General Statutes § 52-278j, requiring a dismissal of the action if the plaintiff "does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed . . ." General Statutes § 52-278j(a).
II. DISCUSSION A. Motion to Dismiss
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court." Bicio v. Brewer, 92 Conn.App. 158, 164, 884 A.2d 12 (2005); see Bridgeport v. Debek, 210 Conn. 175, 179, 554 A.2d 728 (1989).
"It is fundamental that jurisdiction over a person can be obtained by waiver." (Emphasis in original.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). "[Practice Book § 10-32] specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance and] in the sequence required by Practice Book § 10-6 . . . Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of service of process is waived if not sooner raised." (Emphasis in original.) Pitchell v. Hartford, CT Page 7834 247 Conn. 422, 433, 722 A.2d 797 (1999).
B. Subject Matter And Personal Jurisdiction
The defendant claims that the court does not have subject matter jurisdiction in this case because General Statutes § 52-278j(a) directs that the court shall dismiss the prejudgment remedy "[i]f an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed." Therefore, the issue before this court is whether the plaintiff's failure to comply with General Statutes § 52-45a deprives the court of subject matter jurisdiction, which may not be waived, or of personal jurisdiction, which may be waived.
The court also notes that Practice Book § 8-1(a) provides: "Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with the following judicial branch forms prescribed by the chief court administrator: Form JD-FM-3 in family actions, Form JD-HM-32 in summary process actions, and Form JD-CV-1 in other civil actions, as such forms shall from time to time be amended. Any person proceeding without the assistance of counsel shall sign the complaint and present the complaint and proposed writ of summons to the clerk; the clerk shall review the proposed writ of summons and, unless it is defective as to form, shall sign it."
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . In other words, [s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citation omitted; internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334-35, 857 A.2d 348 (2004).
It is also well established by our courts that "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged . . . We therefore require a clear showing of legislative intent that a failure to comply with a particular statutory requirement deprives the court of subject matter jurisdiction . . . Indeed, although mandatory language may be an indication that the legislature intended . . . [for the] requirement to be jurisdictional, such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar." (Citations omitted; internal quotation marks omitted.) Fedus v. Planning and Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006).
"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, supra, CT Page 7835 210 Conn. 179-80; Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988). Under our well established jurisprudence, "[a] challenge to a court's personal jurisdiction . . . is waived if not raised by a motion to dismiss within thirty days [after the filing of an appearance]." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 32, 848 A.2d 418 (2004). "The general waiver rule, however, is inapplicable in situations in which there has been no service of process or attempt of service." (Emphasis added.) Bowen v. Seery, 99 Conn.App. 635, 637-38, 915 A.2d 335, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007).
Where, however, service of process has occurred or has been attempted in a defective manner, the question is one of personal and not subject matter jurisdiction. In General Motors Acceptance Corporation v. Pumphrey, 13 Conn.App. 223, 225-26, 535 A.2d 396 (1988), the third-party defendant, Aetna, was served with a copy of a third-party complaint and an order granting a motion to implead, which included a return date without a third-party writ of summons. The plaintiff's subsequent motion for default for failure to appear was granted by the trial court, but no notice was sent to Aetna in accordance with the Practice Book. Id., 226. The Appellate Court, in deciding to allow Aetna to open the judgment, stated that "[s]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of in personam jurisdiction over that party." (Emphasis added.) Id., 227.
Similarly, where the service of a complaint has not been made after a stipulation in a PJR proceeding, our Appellate Court has also indicated that failure to comply with § 52-45a does not implicate subject matter jurisdiction. In Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 769, 837 A.2d 841 (2004), the parties came to an agreement at the prejudgment remedy hearing and signed a stipulation approximately thirty days later. On the same day that the stipulation was signed by the parties, the defendant filed a motion to dismiss, arguing, inter alia, that the court did not have personal jurisdiction because they were not served with a complaint along with a summons, as required pursuant to § 52-45a. Id. The trial court denied the motion, and a default judgment was entered against them. Id., 769-70. On appeal, defendants' claim that the court lacked subject matter jurisdiction was unavailing. The Appellate Court held that because "the plaintiff's failure to serve the defendants with a writ of summons and complaint as required by § 52-45a implicates only the court's personal jurisdiction . . . the court had subject matter jurisdiction over the action." Id., 772.
Furthermore, this general jurisdictional principal has been reiterated, albeit in a foreclosure case, in the recent Supreme Court case of Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868, 873 (2008). "A defect in process . . . implicates personal jurisdiction . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Id.
C. Procedure Upon Application for a PJR
A civil action initiated by a PJR application proceeds in two phases. The application and proposed summons and complaint must be filed with the court as a preliminary procedure to secure assets to satisfy any subsequent judgment. Whether the application is granted or denied, the actual civil complaint must thereafter be served on the defendant and returned to court within thirty days. See General Statutes § 52-278j(a) and (b). Although this second phase is considered by our courts to be a separate action or procedure, signified by the requirement of separate service of a signed writ, summons and complaint; significantly, the file maintains the same docket number and the appearance filed in the original PJR application is retained as a general appearance for the case-in-chief. See Boyles v. Preston, 68 Conn.App. 596, 602, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002).
"The purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiff's judgment, should he obtain one . . . It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover . . . It is well established that [t]he adjudication made by the court on the application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff's cause of action . . . A trial judge's duty in a prejudgment remedy hearing is to determine whether probable cause exists to sustain the validity of a party's claim . . .
"The process of obtaining a prejudgment remedy is different from the process of commencing a civil action." (Emphasis in original; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 557-58, 944 A.2d 329 (2008).
The essential language of a writ of summons or attachment is to summon a party to file an appearance in a pending action at the proper court. Here, an appearance had previously been filed and the preliminary action of a PJR hearing had been fully contested followed by a written decision. Further, the court finds there to be no prejudice to the defendant under the facts presented in this case. Based upon the information contained in the summons served on the defendant and filed within thirty days of the granting of the fully contested PJR application, there could be no doubt that the service of the signed complaint was intended to comply with the requirements of General Statutes § 52-278j. See General Statutes § 52-123. But for the absence of language in the "summons" specifically calling upon the defendant to file an appearance within two days of the return date, the court finds there was sufficient information in the "summons" to adequately apprise the defendant of the status of the case; namely, that the plaintiff was proceeding to judgment in the underlying civil cause of action. More particularly, the defendant was apprised of the names of the parties, the docket number and the return date of the case. Additionally, the defendant was served with the underlying, signed complaint upon which the PJR decision was rendered by a finding of probable cause.
General Statutes § 52-123 provides: "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 court."
Had there been no service of process and return to court of the signed complaint, there would be no case before the court, as the PJR procedure was preliminary to the actual, civil cause of action. Under such a circumstance, the court might not be competent to consider the civil action, based only upon the filing of a PJR application and the proposed, unsigned complaint previously filed with the court. See Baldwin Piano and Organ Co. v. Blake, 186 Conn. 295, 298, 441 A.2d 183, 184 (1982). In this case, however, the signed complaint and defective writ of attachment, absent a properly worded summons, were served on the defendant. For these reasons, the court finds that it has jurisdiction over the subject matter of the complaint, which involves a contractual dispute and damages ordinarily within the jurisdiction of this court. Further, the court concludes that the nature of the defendant's jurisdictional claim is one of personal jurisdiction and that, as such, it may be waived.
D. Thirty Days for Motions to Dismiss for Lack of Personal Jurisdiction
A motion to dismiss for lack of personal jurisdiction is required by our rules to be filed within thirty days of the filing of an appearance. Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." Practice Book § 10-30 further 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 . . ."
The defendant's attorney signed an appearance in this matter on February 1, 2008, later filed with the court on February 4, 2008. The appearance is without qualification, although the only matter pending at the time was an application for a PJR and not the subsequently filed civil action bearing the same docket number. "Our courts have held that where a party has submitted to the court's jurisdiction by contesting an application for prejudgment remedy on the merits, that action will suffice as a general appearance in the case-in-chief . . . Once the application for prejudgment remedy and the accompanying documents are filed properly with the clerk of the court, the case is then pending in court . . . The court becomes seized of the matter by virtue of the filing of the application, and the hearing on the application should be treated like any other interlocutory proceeding in a pending case." (Citation omitted; internal quotation marks omitted.) Boyles v. Preston, supra, 68 Conn.App. 602.
In the Boyles case, cited above, the Appellate Court found that a motion to dismiss must be filed within thirty days of the filing of an appearance in the application for a PJR and not the subsequently filed case-in-chief. Ordinarily, once an action is initiated and an appearance is filed, a certificate of mailing is all that is required to prove notice of further court proceedings. Somewhat paradoxically, our PJR statute requires further service of process of the underlying civil cause of action, notwithstanding the appearance of the defendant in the file. It seems logical that, if service of process is required and improperly executed, there should be an opportunity to challenge the jurisdiction of the court over the person defectively served. However, our rules and case law do not appear to address this anomaly. Instead of affording an additional thirty days to challenge personal jurisdiction over the person defectively served, failure to serve and return the signed complaint to court within thirty days results in a dismissal under General Statute § 52-278j. This procedure appears to be sufficient to protect defendants who have filed an appearance in the PJR application proceeding, so long as the service of process is sufficient to apprise them of the fact that the plaintiff intends to proceed toward judgment, as the court has found under the facts of this case.
III. CONCLUSION
The court finds that the plaintiff has substantially complied with the requirements of General Statutes § 52-278j, and that any error in the summons is circumstantial. See General Statutes § 52-123. In addition, more than thirty days have passed since the defendant filed its appearance in this matter and, therefore, the opportunity to challenge personal jurisdiction has been waived. The motion to dismiss is denied.