FALCON PAVING, INC. v. KOCH BUILDERS, No. CV 05 4008930 S (Aug. 1, 2005)

SHAPIRO, JUDGE.

This matter appeared before the court at the short calendar on July 18, 2005, concerning the defendants' motion to dismiss on the grounds of lack of personal jurisdiction (motion), in which they contend that the summons was defective due to lack of compliance with Practice Book § 8-1 and General Statute § 52-45a. At the calendar, each counsel stated that they relied on the papers which had been submitted.

Since, as to the motion, there are no disputed issues of fact, an evidentiary hearing was neither requested nor required. After consideration of the parties' arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is granted.

I BACKGROUND

In its amended complaint (#102), dated March 17, 2005, the plaintiff alleges the defendants are liable to it for unpaid amounts due in connection with paving which was provided.

Present in the court's file is the summons which accompanied the original complaint, dated February 17, 2005, which was set forth on the standard "Summons-Civil" form (for ease of reference, the court refers to this document as the "summons"). The summons, when properly executed, provides the standard language which directs a proper officer to serve process: "TO: Any proper officer; BY AUTHORITY OF THE STATE OF CONNECTICUT, you are hereby commanded to make due and legal service of this Summons and attached Complaint." Immediately below the text of the "Notice To Each Defendant" contained on the form, and immediately above the line which provides for the CT Page 11732 insertion of the plaintiff's appearance (appearance line), a line appears on the summons which provides spaces for inserting: the date; the signature of a Commissioner of the Superior Court or an Assistant Clerk (with a box to be checked for the signer's identification as either); and the typed name of the person who has signed. Here, the space for the date was typed in as being February 17, 2005. Although the box for "Comm. of Superior Court" was marked with an "X," no signature was inserted on this line in the space where a signature should have appeared. Instead, that space is left blank. The space for the person "signing at left" contains the typed name of the plaintiff's attorney. Thus, no one signed the summons in the space provided for the signature of a Commissioner of the Superior Court or an Assistant Clerk in order to provide the direction to a proper officer to serve the summons "BY AUTHORITY OF THE STATE OF CONNECTICUT."

Pursuant to Connecticut Code of Evidence §§ 2-1 and 2-2, the court takes judicial notice of the contents of the file. A court may take judicial notice of relevant court files. See State v. Carey, 228 Conn. 487, 497, 636 A.2d 840 (1992).

Below the appearance line on the form, spaces are provided for the taking of a recognizance. The plaintiff's attorney's signature was inserted there and an "X" placed in the box for "Comm. of Superior Court," signing that he signed as the "Official taking recognizance."

According to the return of service by State Marshal Frank Sandillo, he served the summons and complaint on the defendants on February 19, 2005. The return date in this matter was March 8, 2005. The defendants filed their appearance through counsel on March 17, 2005.

On March 21, 2005, the plaintiff filed its amended complaint, accompanied by another summons form, which it characterizes as the "amended summons," see plaintiff's objection to motion to dismiss and supporting memorandum of law (##106, 106.10) (objection), p. 1. Although still dated February 17, 2005, the "amended summons" contains plaintiff's counsel's signature in the space which was left blank in the summons. No supplemental return of service was filed.

The defendants filed their motion on March 31, 2005. Thus, the motion was filed within thirty days of the filing of their appearance. See Practice Book § 10-30, discussed below.

II DISCUSSION CT Page 11733

"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). Practice Book § 10-30 provides that "[a]ny 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." See Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992). As noted above, the defendants have done so here.

"When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Citation omitted and internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736-37, 846 A.2d 831 (2004).

The defendants contend that the failure of the summons to contain the signature creates a jurisdictional defect, citing Practice Book § 8-1, which provides, in pertinent part, "[m]esne 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." (Emphasis added.) The plaintiff also relies on General Statute § 52-45a, which likewise provides, "[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment . . . 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." (Emphasis added.)

Practice Book § 8-1 also provides that "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-CV-1 in other civil actions, as such forms shall from time to time be amended."

In response, the plaintiff argues that the summons was signed once "but not in the correct location," see objection, p. 2; that the defect was cured by the amended summons; and that the defect was circumstantial in nature. It asserts that General Statute § CT Page 11734 52-123 affords protection against dismissal based on a defect of this type. General Statute § 52-123 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."

"[A] writ of summons is a statutory prerequisite to the commencement of a civil action . . .

[I]t is an essential element to the validity of the jurisdiction of the court . . . [T]he writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . ." (Citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991). "A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court." (Internal quotation marks omitted.) Boyles v. Preston, 68 Conn.App. 596, 605, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002).

Our Supreme Court has stated that a summons is analogous to the citation used to commence an administrative appeal. See Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 550. "A citation is a writ issued out of a Court of competent jurisdiction commanding a person therein named to appear on a day named to do something therein mentioned . . . The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . . Without it, the officer would be little more than a deliveryman . . . [Additionally, the] citation is a matter separate and distinct from the sheriff's return and is the important legal fact upon which the judgment rests . . ." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001).

"Although the Superior Court has general subject matter jurisdiction . . . it may exercise 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., Inc., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993).

Here, in the absence of the required signature, the summons was CT Page 11735 defective. Without the signature of a commissioner of the Superior Court or a judge or an assistant clerk, it provided no legal authority to the marshal to serve the defendants with process. The defect in the summons utilized by the plaintiff affected the court's personal jurisdiction over the defendants. See Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 550-51 (improperly executed writ or citation is "a defect in having the court acquire personal jurisdiction over the defendant.").

The fact that the plaintiff's attorney signed the recognizance is immaterial. As set forth above, the standard form JD-CV-1 (Rev. 2000) is designed to perform several important, separate functions. The recognizance for costs is one of these. See General Statute § 52-185. Subsection (b) of § 52-185 provides for the form of a recognizance and states that it may be acknowledged by a Commissioner of the Superior Court. That was the only function accomplished here by the plaintiff's attorney's signature on the summons. The existence of an executed recognizance did not comply with the requirement for a signed commandment to a proper officer, under the authority of the State of Connecticut, to make due and legal service.

Section 52-185(a) provides, "If the plaintiff in any civil action is not an inhabitant of this state, or if it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against him, the plaintiff shall, before the process is signed, CT Page 11738 enter into a recognizance to the adverse party with a financially responsible inhabitant of this state as surety, or a financially responsible inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute his action to effect and answer all costs for which judgment is rendered against him. The recognizance shall not be discharged by any amendment or alteration of the process between the time of signing and of serving it."

Section 52-185(b) states, in pertinent part, "Taken and acknowledged at H. on the ____ day of ____, 20, before me, J.W., Commissioner of the Superior Court."

The court is unpersuaded that the defect is circumstantial in nature. While § 52-123 is to be "liberally construed," Andover Limited Partnership I. v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995), our Supreme Court has observed, "This statute has been in existence [over three hundred years] and has been preserved [essentially] unaltered during this long period of time, though revision after revision of the statutes has been made . . . It was designed to ameliorate the rigors of the common law that required the precise designation of all persons, whether or not parties to an action . . . The statute is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process. We have never held to the contrary." (Citations omitted and internal quotation marks omitted.) Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433-34, 559 A.2d 1110 (1989).

Further, "despite its facially expansive language, 52-123 and its predecessors have been uniformly limited in their application to defects in the writ . . . [T]here is uncontroverted authority to the effect that defects in the process are voidable and therefore subject to abatement. We see no reason to disturb this CT Page 11736 well recognized distinction." (Citation omitted and footnote omitted). Id., 435.

The defect in the process here was not a "misnomer or misdescription in an original writ, summons or complaint," to which § 52-123 may apply. Andover Limited Partnership I. v. Board of Tax Review, supra, 232 Conn. 396-97. Rather, as discussed above, the process served by the marshal did not "comport . . . with the basic statutory requirements . . ." Boyles v. Preston, supra, 68 Conn.App. 606.

This court's analysis is buttressed also by other decisions in the Superior Court. In Karpinski v. Spodick, Superior Court, judicial district of New Haven, Docket No. 329355 (August 20, 1992, Maiocco, J.) ( 7 Conn. L. Rptr. 250), the court stated, "[h]ere, the writ did not contain the signature of a proper authority directing the commencement of the action. That defect rendered the process and the unauthorized service of process insufficient. The defective process is not a circumstantial defect in the text of the writ that could be cured. General Statutes 52-123 . . . The court never acquired personal jurisdiction over the defendants because service of process upon them was unauthorized . . . Consequently, lacking jurisdiction over the defendants the court has no choice but to grant the motion to dismiss." (Citations omitted.)

Likewise, In McDaniel v. McDonald, Superior Court, judicial district of Litchfield, Docket No. 0060222 (October 14, 1992, Pickett, J.), the citation was unsigned. The court found that the defect deprived it of jurisdiction.

Henderson v. Roller Magic Roller Rinks, Inc., Superior Court, judicial district of Waterbury, Docket No. 122891 (January 17, 1995, Pellegrino, J.) ( 13 Conn. L. Rptr. 359), cited by the plaintiff, is not to the contrary. There, the plaintiff's attorney signed the summons form, JD CV-1 (Rev. 3-91), but in the wrong place. See id. Thus, in contrast to the situation here, the summons there apparently contained a signature of a proper authority directing the commencement of the action. There is no reference in Henderson v. Roller Magic Roller Rinks, Inc., supra, to the "wrong place" as having been an acknowledgement of a recognizance. In that quite different situation, the court found that § 52-123 was applicable and that the defect was circumstantial in nature. See id. CT Page 11737

Also, the court is unpersuaded that the "amended summons" filed by the plaintiff cured the defect. In its objection, p. 1, the plaintiff states that on "March 17, 2005, the Plaintiff mailed an Amended Summons and Complaint to each of the defendants, to their attorney . . . and to the Court." General Statute § 52-54 prescribes that service of a "summons shall be made by the officer reading it and the complaint accompanying it in the hearing of the defendant or by leaving an attested copy with him or at his usual place of abode." The plaintiff has provided no authority for the proposition that the "amended summons," which was not served in accordance with § 52-54, let alone served within sufficient time before the return date, cures the jurisdictional defect See General Statute § 52-46 (civil process returnable to the Superior Court shall be served at least twelve days before the return day).

The court does not condone the filing of the "amended summons" utilizing the date of February 17, 2005. As noted, the objection specifically states that the February 17, 2005 summons was not signed in the correct location and that the "amended summons," containing a signature in the space previously left blank, was mailed one month later, on March 17, 2005.

The court never acquired personal jurisdiction over the defendants because service of process upon them was unauthorized.

CONCLUSION

For the foregoing reasons, the motion to dismiss is granted. It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT