Opinion
DBDCV186029478S
07-16-2019
Jeanne MULVIHILL v. DANBURY PUBLIC SCHOOLS
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., J.
On December 10, 2018, the plaintiff, Jeanne Mulvihill (Mulvihill), filed an action against the defendant, Danbury Public Schools (DPS), claiming discrimination on the basis of age in violation of General Statutes § 46-60(b)(1). On February 4, 2018, pursuant to Practice Book § 10-30, the defendant filed a motion to dismiss the plaintiff’s complaint for lack of jurisdiction over the defendant due to insufficient service of process. DPS is the school district for the city of Danbury, and pursuant to General Statutes § 52-57(b)(4), the defendant claims that service of process in a civil action against a school district must be served "upon its clerk or one of its committees." The defendant argues that the plaintiff has failed to properly serve the school district’s clerk or one of its committees. Thus, the defendant asserts that service is improper and that the court lacks jurisdiction.
General Statutes § 52-57(b) provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows: ... (4) against a school district, upon its clerk or one of its committee ..."
On April 5, 2019, the plaintiff filed an objection to the defendant’s motion to dismiss. On May 28, 2019, the parties appeared before this court and agreed on the record that the motion to dismiss should be granted, and the court entered an order dismissing the matter (#106). Thereafter, on June 3, 2019, the plaintiff filed a motion to reargue/reconsider the court’s May 28, 2019 dismissal. The court scheduled the matter to be heard on June 24, 2019. On June 24, 2019, only the plaintiff’s counsel appeared, and he indicated that after communication with the defendant’s counsel, the parties agreed that the dismissal may be reopened, and that the motion to dismiss may be decided by the court.
On June 24, 2019, pursuant to that agreement, the court reopened the dismissal (#107.08). The court will now decide the motion to dismiss on the merits. The plaintiff, in addition to the original objection, now requests, by way of her motion to reargue/reconsider, that the court deny the defendant’s motion to dismiss pursuant to General Statutes § 10-243. In support, the plaintiff argues that § 10-243 makes clear that the town clerk and the clerk of a school district are the same person. Thus, according to the plaintiff, the service by the state marshal to the town clerk was valid. Therefore, the plaintiff argues that the defendant’s motion to dismiss must be denied.
General Statute § 10-243 provides: "The town clerk and treasurer of each town shall have all the powers and duties, respectively, of the clerk and treasurer of a school district, except so far as such duties are rendered unnecessary by the provisions of this chapter."
DISCUSSION
"[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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). Practice Book § 10-30(a) provides: "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." "[A]n action commenced by ... improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). "[W]hen a particular method of serving process is set forth by statute, that method must be followed ... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ... The jurisdiction that is found lacking ... is jurisdiction over the person ..." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011).
"Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ... 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." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. 401. "If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted.) Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).
In the present matter, the defendant claims that on November 28, 2018, the Connecticut State Marshal, Thomas A. Lyons, served the Danbury town clerk, Janice R. Giegler at 155 Deer Hill Avenue, Danbury, Connecticut. According to the defendant, General Statutes § 52-57(b)(4) establishes the proper method in which service of process must be made in civil actions brought against a Connecticut school district. The defendant argues that § 52-57(b)(4) does not allow for service at the town clerk for actions against a public school district, but rather the school district’s clerk or one of its committee. Therefore, the defendant argues, it was not provided with sufficient service of process. Furthermore, the defendant argues that any attempt by the plaintiff to properly serve the defendant at this time would be futile because the claim is barred by the statute of limitations. According to the defendant, General Statutes § 46a-101(e), provides that any action brought by the complainant in accordance with General Statutes § 46a-100 must be brought no later than ninety days after the date of the receipt of the release from the Commission on Human Rights and Opportunities. The defendant claims that notice of the release from the commission was sent on September 27, 2018. Therefore, the defendant argues that the court should dismiss the action for lack of jurisdiction because it was never properly served and the ninety days have lapsed.
In response, the plaintiff claims that the defendant was sufficiently served because it is actually board of education pursuant to General Statutes § 10-220. The plaintiff notes that § 10-220(a) provides in relevant part: "Each local or regional board of education shall maintain good public elementary and secondary schools ... and provide such other educational activities as in its judgment will best serve the interests of the school district ..." Therefore, according to the plaintiff, service of the town clerk was sufficient service on the defendant pursuant to General Statute § 52-57 because a board of a town may be served by serving the town clerk. Thus, the plaintiff argues that the defendant’s motion to dismiss should be denied.
In reply to the plaintiff’s counter-arguments, the defendant rejects the plaintiff’s contention that it is actually a board of education. According to the defendant, the Danbury Board of Education determines the general policies that are to be implemented throughout Danbury’s schools, and that the board of education consists of elected officials. In contrast, the defendant claims that it is a school district pursuant to General Statute § 10-241, and by statutory definition is a "body corporate." According to the defendant, it is responsible for employing teachers and staff throughout the school district, and that the plaintiff was employed by the defendant and not the Danbury Board of Education. Moreover, the defendant argues that the plaintiff’s cause of action for age discrimination directly implicates the defendant, not the board of education. Additionally, the defendant directs this court’s attention to the fact that the Connecticut Supreme Court has directly held that a board of education is not considered to be a school district. See Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 543, 556 A.2d 572 (1989). Accordingly, the defendant argues that the motion to dismiss must be granted because the plaintiff has failed to follow the specific service requirements for a school district pursuant to General Statutes § 52-57(b)(4).
General Statutes § 10-241 provides: "Each school district shall be a body corporate and shall have power to sue and be sued; to purchase, receive, hold and convey real and personal property for school purposes; to build, equip, purchase and rent schoolhouses and make major repairs thereto and to supply them with fuel, furniture and other appendages and accommodations; to establish and maintain schools of different grades; to establish and maintain a school library; to lay taxes and to borrow money for the purposes herein set forth; to make agreements and regulations for the establishing and conducting of schools not inconsistent with the regulations of the town having jurisdiction of the schools in such district; and to employ teachers, in accordance with the provisions of section 10-151, and pay their salaries. When such board appoints a superintendent, such superintendent may, with the approval of such board, employ the teachers."
Within the plaintiff’s motion to reargue/reconsider, the plaintiff asserts that pursuant to General Statutes § 10-243, a town clerk and a clerk of a school district are essentially the same person. Therefore, the plaintiff asserts that her service of process upon the Danbury town clerk was effective service upon the clerk of the defendant school district. Consequently, the plaintiff argues that she properly complied with the requirements of service set forth under General Statutes § 52-57, and that the matter should not have been dismissed.
General Statutes § 10-243 provides: "The town clerk and treasurer of each town shall have all the powers and duties, respectively, of the clerk and treasurer of a school district, except so far as such duties are rendered unnecessary by the provisions of this chapter."
The first issue presented is whether the defendant is a school district or a board of education for purposes of service. In Board of Education v. State Employees Retirement Commission, supra, 210 Conn. 543, the Supreme Court held that a school district is a completely separate entity from a board of education. In that case, the plaintiff attempted to argue that they qualified as a municipality because a board of education is essentially a school district. Id., 542. In support, the plaintiff cited to General Statutes § 10-240, which provides: "Each town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts, except so far as such powers and duties are inconsistent with the provisions of this chapter." In the court’s decision it held that "[c]learly, [General Statutes] § 10-240 provides that each town ... shall be a school district, ... and that each town’s board of education is merely the instrumentality through which the town maintain[s] the control of all the public schools within its limits. The plain language of the statute provides that each town, not each board of education, is a school district for the purposes recited therein ... Thus, we conclude that a board of education is not a school district ..." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Board of Education v. State Employees Retirement Commission, supra, 210 Conn. 542. Therefore, based upon the Supreme Court’s ruling in Board of Education v. State Employees Retirement Commission, the court finds that the defendant in the present matter is a school district for purposes of service.
The Appellate Court has recently held that "[the court] will not torture the language in § 52-57(b) to construe a school board of education as being the equivalent of a school district where the plain meaning of the statute makes a clear distinction between the two. We, thus, agree with the board that process properly is served against a school board of education only when it is made upon the clerk of the town, city, or borough pursuant to § 52-57(b)(5)." Mosby v. Board of Education, 191 Conn.App. 280, 286 (2019).
The next issue presented is whether the defendant, as a school district, was properly served by the plaintiff pursuant to General Statutes § 52-57(b)(4). In determining whether the defendant was properly served, the court must construe both statutes cited by the parties. "When construing a statute ... [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ... In determining whether the statutory language is plain and unambiguous, words and phrases [must] be construed according to the commonly approved usage of the language ... Additionally, we must construe the statute in conformity with prior case law interpreting it." (Citations omitted; internal quotation marks omitted.) Redding Life Care, LLC v. Redding, 331 Conn. 711, 718-19, 207 A.3d 493 (2019).
"In construing statutes, we presume that the legislature has created a harmonious and consistent body of law ... We are entitled to presume that, in passing a statute, the legislature not only did so with knowledge of the existing statutes but also that it did not intend to enact a conflicting statute." (Citation omitted; internal quotation marks omitted.) Connecticut Housing Finance Authority v. Alfaro, 328 Conn. 134, 143-44, 176 A.3d 1146 (2018). "In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended ... Furthermore, [i]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions ... [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Citation omitted; internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 525, 98 A.3d 55 (2014).
Furthermore, the Appellate Court has stated very clearly that "[w]here a particular method of serving process is pointed out by statute, that method must be followed ... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ... The designation of a particular officer or officers on whom service may be made excludes all others ... Further, the nature of the position, rank, and responsibilities of the person served is a question of fact." (Citations omitted; emphasis added.) Board of Education v. Local 1282, 31 Conn.App. 629, 632, 626 A.2d 1314, cert. granted, 227 Conn. 909, 632 A.2d 688 (1993) (appeal withdrawn January 3, 1994).
In the present matter, it is undisputed that Connecticut State Marshal, Thomas A. Lyons, made service on the Danbury town clerk, Janice R. Giegler, at 155 Deer Hill Avenue, Danbury Connecticut, the Danbury Town Hall, on November 28, 2018. As the Supreme Court has clearly ruled in Board of Education v. State Employees Retirement Commission, supra, 210 Conn. 543, a board of education is not a school district, and thus the defendant must be served pursuant to General Statutes § 52-57(b)(4). Section 52-57 provides clear direction in how to effect service of process upon a school district. Section 52-57(b)(4) requires that service of process be served "upon its clerk or one of its committees." Section 52-57(b)(4) does not reference the town clerk, but the clerk for the school district specifically. The word "its" refers to the school district, not the town. If the legislature intended to include the town clerk as a proper recipient for service of process, it could have done so in drafting the statute accordingly. Alternatively, the legislature could have included a school district in any of the other subsection to § 52-57 which designates the town clerk as the proper agent for service, such as in § § 52-57(b)(1), (2), (5), or (7). It is quite telling that the legislature purposely omitted the town clerk as the proper agent for service in comparison to the other subsections included under § 52-57(b).
The plaintiff turns the court’s attention to General Statutes § 10-243, which is entitled "Treasurer and clerk." Section 10-243 designates power and authority and provides that the town clerk and treasurer of each town have all the powers and duties, respectively, of the clerk and treasurer of the school district. The mere fact that § 10-243 gives the "town clerk and treasurer of each town" all the powers and duties, respectively, of the clerk and treasurer of the school district does not conflict with the fact that the legislature intentionally chose the actual clerk of the school district or one of its committees to be the proper individual or individuals upon which civil process must be served. The legislature clearly has the authority to delineate individuals for the limited purpose to be the recipient of service of civil process, and other individuals who can exercise the broad powers and duties of the school district clerk or treasurer. They may, without conflict, be mutually exclusive.
Therefore, based upon the clear language of General Statutes § 52-57(b)(4), the court finds that the plaintiff has failed to provide proper service of process against the defendant. Thus, the court finds that it lacks jurisdiction over the present action. Accordingly, the defendant’s motion to dismiss is GRANTED.