Opinion
No. CV06 500 38 03
January 19, 2007
MEMORANDUM OF DECISION
The plaintiff, James F. Wojeck, in the capacity as conservator for Josephine C. Rizzardi, instituted this action against the defendant, David J. Rizzardi.
He claims that the defendant obtained from Josephine C. Rizzardi, a loan in the principal amount of $50,000. He alleges that the loan, which he claimed was advanced in June of 2003, has not been repaid. The plaintiff seeks recovery of the principal, plus interest as provided by statute.
§ 37-3a. C.G.S. " . . . interest at the rate of 10 percent a year, and not more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable . . ."
On July 21, 2006, the plaintiff sought an attachment of real property owned by the defendant at 12 The Old Road, Newtown. Service of the original writ, summons and complaint, and the application for prejudgment remedy was completed on August 2, 2006 by abode service.
The writ, summons and complaint, which bears a return date of September 5, 2006, was returned to court on August 17, 2006. Counsel for David J. Rizzardi filed an appearance in the matter on October 3, 2006. This appearance was in lieu of prior counsel.
On October 10, 2006, the court (Hiller, J.) granted the requested prejudgment remedy, by agreement, in favor of the plaintiff, James F. Wojeck, conservator for Josephine C. Rizzardi. A corrected order was issued on October 16, 2006.
On October 26, 2006, the attachment of real property at 12 The Old Road, Newtown was lodged in the office of the Town Clerk and at the place of abode of David J. Rizzardi, 12 The Old Road.
The defendant now moves to dismiss this action claiming that the plaintiff failed to comply with the provisions of § 52-278j(a) of the General Statutes. That statute reads: CT Page 1316
"(a) 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."
Although the original writ, summons and complaint was returned to court on August 17, 2006, the defendant maintains that the failure of the plaintiff to serve a second writ, summons and complaint following the granting of the prejudgment remedy by Judge Hiller, requires dismissal of the action.
STANDARD OF REVIEW
The purpose of a motion to dismiss is to test whether, in the face of the record, the court lacks either personal jurisdiction over the party or subject matter jurisdiction. Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648 (1954).
The grounds for the granting of a motion to dismiss are set forth in § 10-31 of the Connecticut Practice Book:
(a) The motion to dismiss shall be used to assert 1) lack of jurisdiction over the subject matter, 2) lack of jurisdiction over the person, 3) improper venue, 4) insufficiency of process, and 5) insufficiency of service of process.
Subject matter jurisdiction is the power of a court to hear and determine cases of the general class to which the proceedings in question belong. Gurlacci v. Mayer, 218 Conn. 531, 542 (1991); LeConche v. Elligers, 215 Conn. 701, 709 (1990).
Unlike claims involving a lack of subject matter jurisdiction, allegations of a lack of personal jurisdiction, improper venue, insufficiency of service of process, or insufficiency of process, may be waived if not raised by a motion to dismiss filed within thirty days of the filing of an appearance. Practice Book § 10-32; 10-30.
THE WRIT, SUMMONS AND COMPLAINT WERE PROPERLY RETURNED TO COURT
The motion to dismiss filed by the defendant was not filed either within thirty days of the filing of an appearance on behalf of the defendant, or within thirty days following the service and return to court of the prejudgment remedy ordered by Judge Hiller and entered by agreement.
Two days after the filing of the motion to dismiss, the defendant filed an answer to the complaint.
The defendant has made no direct claim of lack of subject matter jurisdiction, and the defect claimed relates to service and return of process. Therefore, unless the claim involves subject matter jurisdiction, the motion to dismiss fails as untimely.
However, because the Supreme Court has implicitly treated a motion to dismiss filed to attack compliance with § 52-278j as jurisdictional, and capable of being raised irrespective of the state of the pleadings, the merits of the defendant's motion will be addressed. Baldwin Piano Organ Co. v. Blake, 186 Conn. 295, 297 (1982).
§ 52-278j(a) of the General Statutes, by its terms, applies in a situation in which a prejudgment remedy has been granted, but the writ, summons and complaint supporting it was not returned to court within the time period provided by statute.
Here, a proper writ, summons and complaint was served upon the defendant, along with the application fee for a prejudgment remedy. After the process was properly returned to court, an attachment of real property was issued by agreement.
To read the statute as the defendant suggests, would require the redundant act of reserving a second writ, summons and complaint, along with the court-ordered attachment of real property. Neither the commands of the statute, nor the exercise of common sense, requires this absurd result. Raynor v. Hickock Realty Corp., 61 Conn.App. 243 (2000).
Dismissal of the complaint would only be warranted if the defendant had not been served at any time before the expiration of the statutory time, or the complaint was never returned to court. Although the statute establishes an outer limit for the timeliness of service of process and the return of process to court, it does not negate the effect of earlier service. Baldwin Piano Organ Co. v. Blake, supra, 299-300 (Peters, J. concurring).
The motion to dismiss is DENIED.