Opinion
No. NNH CV 08-5021887
April 28, 2011
MOTION TO REARGUE/RECONSIDER NO. 119
FACTS
On December 3, 2010, this court issued a memorandum of decision on a motion for summary judgment filed by two defendants, Rebecca Smith and Blanca Little. The court denied the motion for summary judgment finding that the defendants waived their right to contest personal jurisdiction and that, therefore, the action had commenced within the statute of limitations.
On December 13, 2010, the defendants filed a motion to reargue and reconsider the court's ruling pursuant to Practice Book § 11-12 on the ground that the court's "ultimate conclusion that the current action was commenced within the statute of limitations cannot be true" and that the defendants "have not waived their rights to raise the fact that no action has been commenced them within the applicable statute of limitations." The court granted the motion to reargue and heard oral arguments at short calendar on April 4, 2011.
DISCUSSION
"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001). "The granting of a motion for reconsideration . . . is within the sound discretion of the court." (Internal quotation marks omitted.) Mangiante v. Niemiec, 98 Conn.App. 567, 575-77, 910 A.2d 235 (2006). "A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it." (Internal quotation marks omitted.) Id., 577.
The defendants argue that because they have not been served with process, no action has been commenced against them. They maintain that since proper service has never been made on them, the statute of limitations has expired and the case should be dismissed as to them. "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, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "[A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "The exercise of this jurisdiction requires (1) the service of process on the defendant, or on his agent for the service of process, (2) the consent to the jurisdiction of the court by the defendant or (3) waiver of any objection to the court's exercise of personal jurisdiction by the defendant." Talenti v. Morgan Brother Manhattan, 113 Conn.App. 845, 853-54, 968 A.2d 933 (2009).
"In the absence of a voluntary appearance, the issuance and service of process or notice is indispensable to the jurisdiction of a court to determine the adverse claims of parties to the litigation. Until notice is given to the defendant of the action or proceedings against him, and he is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding. The parties and their case must be brought before the court, and this is accomplished by the use of process." General Motors Acceptance Corp. v. Pumphrey, 13 Conn.App. 223, 227-28, 535 A.2d 396 (1988).
Once an appearance is entered, however, if a party seeks to challenge personal jurisdiction, it must do so affirmatively. Unlike the situation with subject matter jurisdiction, a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance. Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 32, 848 A.2d 418 (2004); see also Practice Book §§ 10-30, 10-32.There are exceptions to the general rule that a party must affirmatively dispute personal jurisdiction when service is improper. Specifically, Connecticut courts have established two circumstances when the waiver rule does not apply. First, the court cannot exercise personal jurisdiction over a defendant if they have never been made a party to the action. In Bicio v. Brewer, 92 Conn.App. 158, 165-67, 884 A.2d 12 (2005), the Connecticut Appellate Court cited three cases to explain the circumstances under which a defendant had not been made a party to the action. In those three cases, the court had found that it did not have personal jurisdiction because the parties against whom judgment was sought either were not named as a party in the action or did not receive any notice of the action and, therefore, did not appear in the case. See Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000) (court has no jurisdiction to approve or vacate arbitration award against entity not named as a party to any proceeding); Delio v. Earth Garden Florist, Inc., 28 Conn.App. 73, 77, 609 A.2d 1057 (1992) (vacating arbitration award affirmed by trial court for someone not named as a party in arbitration due to lack of jurisdiction); General Motors Acceptance Corp. v. Pumphrey, supra, 13 Conn.App. 228-30 (motion to open judgment more than four months after judgment by default for failure to appear allowed where writ never attempted to be served). See also Bicio v. Brewer, supra, 162-65 (holding that trial court properly dismissed negligence count where state not named or served).
Secondly, where no attempt of service is ever made, "the general waiver rule with respect to jurisdiction over the person is inapplicable." Id., 164-65. In such cases, the court lacks personal jurisdiction over the purported defendant. Lack of service of process requires that there exist no evidence of an attempt by the plaintiff to complete service of process. See Elias v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 4016758 (March 18, 2010, Brazzel-Massaro, J.).
In circumstances where there has been some defect in service, however, the waiver rule does apply. Bicio v. Brewer, supra, 164-65. Absent the above exceptions, the defendant must file a motion to dismiss within thirty days of filing an appearance, pursuant to Practice Book § 10-30, to contest personal jurisdiction.
The court in the present case is presented with none of the exceptions to the general waiver rule. The defendants were properly named in the summons and complaint and a voluntary appearance was entered on their behalf. Moreover, the marshal's return of service indicates that the plaintiffs attempted to make service on the defendants on July 10, 2008. Though service was not proper, the current attorney for the defendants entered a voluntary and proper appearance on behalf of the defendants on October 6, 2009. At no time did the defendants file a motion to dismiss for lack of personal jurisdiction. As there is evidence that the plaintiffs attempted to serve the defendants and a voluntary appearance was entered on their behalf, the waiver rule applies. Since the defendants did not file a motion to dismiss for lack of personal jurisdiction within thirty days of the October 6, 2009 appearance, they waived the right to raise the issue. Since the court has jurisdiction over the defendants through the waiver of their personal jurisdiction claim, the statute of limitations argument fails.
CONCLUSION
Based on the above, the court affirms its denial of the motion for summary judgment.