Opinion
No. CV 03 0091560
June 28, 2004
MEMORANDUM RE MOTION TO DISMISS
The plaintiff, Russell Berry, initiated this action against the defendants, Mary Haight individually and Mary Haight as administratrix of the estate of Oakley Haight, seeking damages for personal injuries allegedly sustained in a motor vehicle accident caused by Oakley Haight (decedent). The defendant, Mary Haight as administratrix of the decedent's estate, filed a motion to dismiss counts one and two of the plaintiff's complaint, claiming that the court lacks jurisdiction because "the plaintiff has failed to serve this defendant." The plaintiff filed an objection to the motion and simultaneously moved this court to appoint Mary Haight as administratrix of the decedent's estate so that the estate may be properly served. For the reasons set forth below, the defendant's motion is granted and the plaintiff's motion is denied.
Mary Haight is being sued in her individual capacity because she allegedly owned the vehicle driven by the decedent.
The accident resulted in Oakley Haight's death.
"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." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
"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 added; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989); but see Galluzzo v. Board of Tax Review, 44 Conn. Sup. 39, 43, 666 A.2d 841, 13 Conn. L. Rptr. 507 (1995) (service proper although not made twelve days before the return day). "[A]ny 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 . . ." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). The defendants in the present case filed their appearance on October 30, 2003. The defendant, Mary Haight as administratrix, filed her motion to dismiss on November 28, 2003, which is within thirty days of filing the appearance, and thus personal jurisdiction was not waived.
The defendant argues that she must be served both individually and as adminstratrix of the decedent's estate. She further argues that Connecticut General Statutes § 52-63 only authorizes service upon the Department of Motor Vehicles (DMV) as an agent in actions against an owner of a vehicle, and that the DMV is not an agent of service for a fiduciary of an estate. Fiduciaries, the defendant argues, must be served in accordance with Connecticut General Statutes § 52-60. Thus, the defendant claims that the decedent's estate was never served. In his objection, the plaintiff states that he was informed by the New Milford Probate Court that an estate for the decedent has not been opened. Additionally, the plaintiff moves this court to appoint Mary Haight as administratrix of the decedent's estate, stating that the appointment is necessary in order to properly serve the estate and proceed with the lawsuit.
Our Appellate Court has held that an estate "is neither a natural nor an artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent." Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 494 (1985). Connecticut General Statutes §§ 52-60 and 52-61, which relate to non-resident administrators, indicate that the proper way to serve an estate is to serve the court-appointed administrator in his or her representative capacity. In the present case, the plaintiff admits that the New Milford Probate Court clerk informed him that an estate for the decedent has not been opened. Additionally, the plaintiff filed a motion asking this court to appoint Mary Haight as administratrix of the decedent's estate so that the estate may be properly served. Thus, the plaintiff concedes that the estate was not properly served.
Mary Haight is a resident of Connecticut. However, §§ 52-60(a) and 52-61 have been used to determine how an estate is properly served. See Hillebrand v. Landino, supra, Superior Court, Docket No. 259350.
The court finds that the decedent's estate is not before the court since service of process was not made on the individual serving as the administrator of the estate. See Hillebrand v. Landino, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 259350 (December 14, 1990, Hodgson, J.) ( 3 Conn. L. Rptr. 49) (motion to dismiss granted for lack of in personam jurisdiction where service not made on administrator); Mendoza v. Luzusky, Superior Court, judicial district of Waterbury, Docket No. 116137 (November 17, 1993, McDonald, J.) ( 10 Conn. L. Rptr. 394, 8 C.S.C.R. 1270) (service of no effect where no estate was opened and nobody had been appointed administrator). Accordingly, the court finds that the court lacks personal jurisdiction over the estate and the defendant's motion to dismiss is granted.
In response to the plaintiff's motion for this court to appoint Mary Haight as administratrix, that motion is denied. The plaintiff argues that appointing an administrator is necessary to proceed with the lawsuit. However, the plaintiff has not provided the court with any legal authority indicating that the Superior Court has jurisdiction to appoint an individual as administrator of an estate. The court notes that neither party briefed this issue.
Connecticut General Statutes § 51-164s provides that the Superior Court "shall be the sole court of original jurisdiction for all causes of action except in such actions over which the courts of probate have original jurisdiction, as provided by statute." See also Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 534, 506 A.2d 1054, cert. denied, 200 Conn. 807, 512 A.2d 230 (1987). Connecticut General Statutes § 45a-303 provides that "[w]hen any person domiciled in this state dies intestate, the court of probate in the district in which the deceased was domiciled at his death shall have jurisdiction to grant letters of administration." Because § 45a-303 grants jurisdiction over the appointment of administrators to the Probate Court, the plaintiff's motion requesting that this court appoint Mary Haight as administratrix of the decedent's estate is denied.
Black's Law Dictionary (7th Ed. 1999), defines "letters of administration" as "a formal document issued by a probate court to appoint the administrator of an estate."
Orders may enter accordingly.
BRUNETTI, J.