LEWIS, JUDGE TRIAL REFEREE.
Appearing on the April 12, 2004 motion or short calendar were two motions to dismiss (#112 and #115) both filed by the defendant, the Kent Golf Club, LLC. (Kent Golf Club), pursuant to Practice Book §§ 10-30, 10-31(a)(5). The underlying action alleges a breach of a written employment agreement to sell golf club memberships on commission.
A claim of lack of personal jurisdiction based on insufficient service of process is properly addressed by a motion to dismiss filed pursuant to Practice Book § 10-30. Hersey v. Lonrho, Inc., 73 Conn.App. 78, 81, 807 A.2d 1009 (2002).
On January 29, 2004, the court, Hiller, J., denied an application by the plaintiff, Peter Sanders, for a prejudgment remedy (PJR) against both the named defendant, Bulls Ridge Golf Club, Inc., and against the individual defendant, Arthur T. Plant, but granted the application against Kent Golf Club, hereinafter referred to as the defendant, in the amount of $100,000.
The first motion by Kent Golf Club claims that the plaintiff, after obtaining a PJR, failed to comply with General Statutes §§ 52-278d(b) and 52-280, pertaining to service of PJRs and attachments, respectively. General Statutes § 52-278d(b) provides in relevant part that if a PJR application is granted, the clerk shall deliver the proposed writ, summons and complaint to the plaintiff's attorney "for service of process." General Statutes § 52-280 provides that the officer serving the process shall leave with the person whose property was attached "a true and attested copy of the process and of the accompanying complaint" and the marshal's return of service. The defendant contends that "the plaintiff's attachment is defective because the plaintiff did not serve the defendant with the writ of attachment," and that the only process served on the defendant was the order of attachment.
In the court's file, there are three returns of service by two different marshals as follows.
the first is dated February 18, 2004 and indicates that the marshal left a true and attested copy of the original writ, summons and complaint with the agent CT Page 11927-aa of the defendant for service of process.
a return dated February 19, 2004 indicates that after filing a certificate of attachment with the Town Clerk of Kent relating to Kent Golf Club's realty in that town, the marshal left a true and attested copy of the original signed Order for Prejudgment Remedy and Attachment at the usual place of abode of the agent for service of process for the defendant.
the third return of service, also dated February 19, 2004, states that the original signed order for the prejudgment remedy of attachment was left with the same agent for service of process.
These three returns of service, read together, indicate that the defendant was properly served in accordance with General Statutes § 52-280 and, accordingly, the defendant's motion to dismiss based on a failure to comply with that statute is denied.
The second motion to dismiss claims that the plaintiff used Form JD-CV-1 for service of process in violation of Practice Book § 8-1(a)(7), which provides that this particular form shall not be used in proceedings involving "[a]ny actions or proceedings in which an attachment . . . is sought." The file confirms that the plaintiff did use that form for service of process. The issue is whether the use of this form mandates a vacating of the order of attachment. The defendant does not cite any case or other authority for this proposition.
The use of this form can best be characterized as a circumstantial defect not warranting dismissal of the order of attachment. The defendant received notice that a PJR of attachment was sought and was subsequently granted by the court after a hearing in which the defendant participated. In Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 356-57, 514 A.2d 749 (1986), our Supreme Court held that the JD-CV-1 form, as completed in that case, contained the essential elements of the required citation, and its use, in the absence of any demonstrable prejudice to the defendant, would not be cause for dismissal. The defendant does not argue that it was in any way prejudiced by the use of the wrong form and no such prejudice can be discerned.
In the analogous situation of administrative appeals, where the use of Form JD-CV-1 is also not allowed; Practice Book § 8-1(b)(4); such use is not necessarily fatal. In Cardoza v. Zoning Commission, 211 Conn. 78, 557 A.2d 545 (1969), our Supreme Court has held, that "[a]s long as [the form] contains a proper citation, signed by a competent authority, its use does not call into question the jurisdiction of the Superior Court to entertain the appeal . . . If the form . . . clearly apprises all concerned that a lawsuit is being instituted, and contains notice of the return date, and the requirement for filing an appearance, and also directs a competent authority to summon the defendant, then the policy of giving notice to the defendant of the nature of the proceedings has been served . . . Absent an affirmative showing of prejudice by the defendant . . . we conclude that the mistaken use of [Form JD-CV-1] does not warrant the dismissal of an administrative appeal." (Citations omitted; internal quotation marks omitted.) Id., 84-85.
Both motions to dismiss are denied.
Dated at Stamford, Connecticut, this 2nd day of August 2004. CT Page 11927-ab
William B. Lewis, J.T.R.