Opinion
No. PJR-CV06-5003078S
Memorandum Filed March 13, 2007
Prejudgment Remedies — Procedural Matters — Service of Process — Service of a PJR Application of a Signed Rather than Unsigned Writ, Summons and Complaint Formally Commences the Underlying Action, Even Though No Additional Service Is Made After the Prejudgment Hearing. Although the Prejudgment Remedy Statute requires that unsigned copies of the proposed writ, summons and complaint be attached to the application for prejudgment remedy that is filed with the court and served on the defendant, and that a signed writ, summons and complaint be served after the hearing on the PJR application, CGS § 52-278c(a), the premature service of a signed writ, summons and complaint with the PJR application is sufficient to formally commence the action without a second service following the PJR hearing.
The defendants have filed a motion to dismiss claiming that the plaintiff failed to comply with the requirements of General Statutes § 52-278j(b). The defendant recites that the plaintiffs Application for Prejudgment Remedy was denied by the court on December 11, 2006 and neither additional service upon the defendants, nor a return to court has been made. As a result, the defendants claim the court does not have subject matter jurisdiction to further entertain the subject action and it must be dismissed.
The plaintiffs object to the motion to dismiss and argue that the requirements of General Statutes § 52278j(b) are not at issue, in that the defendants had been served with a signed writ, summons and complaint along with the Application for Prejudgment Remedy on June 26, 2006, well before the denial of the application for prejudgment remedy, and that a return to court has been made.
On June 9, 2006, the plaintiffs filed an Application for Prejudgment Remedy pursuant to General Statutes § 52-278c. A hearing was scheduled by the court for July 10, 2006. Service on the defendants was ordered to occur on or before July 4, 2006. The defendants were personally served by a state marshal on June 26, 2006. The plaintiffs thereafter returned the action to court on July 6, 2006. Counsel for the defendants filed his appearance in the defendants behalf on July 7, 2006. On July 21, 2006 the defendants filed an Objection to the Application for Prejudgment Remedy directed toward the efforts of the plaintiffs to pierce the corporate veil and hold the defendant Hoinacki personally liable in a contract dispute between the parties.
On or about December 11, 2006, the defendants filed a Supplemental Objection to the plaintiffs' Application for Prejudgment Remedy on the grounds that the plaintiff failed to comply with requirement in § 52-278j(b) that the hearing on the plaintiff's application for prejudgment remedy be heard within thirty days of the clerk's original scheduling of the matter. The plaintiff claimed that the court must deem the application as having been withdrawn.
Sec. 52-278j. Dismissal or withdrawal of prejudgment remedy reads in relevant part as follows:
(a) If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgment remedy.
(b) If an application for a prejudgment remedy is denied and the plaintiff, within thirty days thereof, does not serve and return to court the writ of summons and complaint for which the prejudgment remedy was requested, or if a date for a hearing upon a prejudgment remedy is scheduled by the clerk and such hearing is not commenced within thirty days thereof, except as provided in section 52-278e, the court shall order the application to be considered as having been withdrawn . . .
On December 12, 2006 the court (Matasavage, J.) sustained the defendant's supplemental objection without a written memorandum of decision, in effect, denying the application for a prejudgment remedy. Thereafter, on February 2, 2007, the plaintiffs filed a motion for default, requesting that the defendants be defaulted for their failure to file an answer to the complaint dated June 9, 2006. That motion was granted administratively by the Clerk on February 8, 2007. On February 16, 2007, the defendants moved to reopen the defaults and concurrently filed the subject motion to dismiss. On March 5, 2007, by agreement of the parties, the court (Arnold, J.) granted the motion to open the defaults and heard the arguments of the parties regarding the merits of the defendants motion to dismiss. The defendants, thereafter, filed a supplemental memorandum of law dated March 8, 2007.
I. Standard of Law Re Motion to Dismiss
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "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." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298 (1997); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989).
The grounds for the granting of a motion to dismiss are set forth in Practice Book § 10-31:
(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process.
"Because the Supreme Court has implicitly treated a motion to dismiss filed to attack compliance with § 52-278j as jurisdictional, and capable of being raised irrespective of the state of the pleadings, the merits of the defendant's motion will be addressed. Baldwin Piano Organ Co. v. Blake, 186 Conn. 295, 297 (1982)." Wojeck v. Rizzardi, Superior Court, judicial district of Fairfield at Bridgeport No. CV06 500 38 03 (January 19, 2007, Radcliffe, J.) [ 42 Conn. L. Rptr. 669].
II. Discussion
The parties do not disagree that when the plaintiffs served the defendants with the application for a prejudgment remedy, the copy of the writ, summons and complaint were signed by plaintiff's counsel despite General Statutes § 52-278c(a) which provides that said writ, summons and complaint be "unsigned." The parties also agree that following the court's ruling sustaining the defendants' objection to the plaintiffs' application for prejudgment remedy, the plaintiffs made neither an additional service upon the defendants, nor an additional return to court as required by General Statutes § 52-278j(b) which states:
Sec. 52-578c(a) reads in relevant part as follows:
(a) Except as provided in sections 52-278e and 52-278f, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents . . .
(b) If an application for a prejudgment remedy is denied and the plaintiff, within thirty days thereof, does not serve and return to court the writ of summons and complaint for which the prejudgment remedy was requested, . . . the court shall order the application to be considered as having been withdrawn.
The rules regarding statutory construction are well-settled. "When interpreting a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. It 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. General Statutes § 1-2z." (Citation omitted; internal quotation marks omitted.) D'Angelo Development Construction Co. v. Cordovano, 278 Conn. 237, 243, 897 A.2d 81 (2006); Suffield Development v. National Loan In., 97 Conn.App. 541, 575. 902 A.2d 1073 (2006). "Where . . . the language of the statute is clear and unambiguous, courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for doing so." Simko v. Zoning Board of Appeals, 205 Conn. 413, 418, 533 A.2d 879 (1987), modified on other grounds, 206 Conn. 374, 538 A.2d 202 (1988).
"[T]he plaintiff's right to a [prejudgment remedy] is founded and regulated by statute, [and therefore] the law mandates strict compliance with the authorizing statute." William Beazley Co. v. Business Park Associates, Inc. 34 Conn.App. 801, 803, 643 A.2d 1298 (1994). "The power of taking property by attachment, before any just debt or claim has been established, is an extraordinary power, given by statute, against common right; and no title can be acquired by its exercise, except by strict compliance with the terms of the statute." Feldman v. Sebastian, 261 Conn. 721, 725-26, 805 A.2d 713 (2002). However, it is also "a basic tenet of statutory construction that we construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation." (Internal quotation In re Steven M., 264 Conn. 747, 757, 826 A.2d 156 (2003).
The question for the court is whether the plaintiff's non-compliance with the prejudgment remedy statutes is also fatal to their underlying action, evidenced by the return of their signed writ, summons and complaint at the time they filed their application for a prejudgment remedy. The court finds that it is not fatal and denies the motion to dismiss.
The court finds that the legislature's use of the word shall generally evidences an intent that General Statutes § 52-578c(a) be interpreted as mandatory. Todd v. Glines, 217 Conn. 1, 8, 583 A.2d 1287 (1991). In order for the plaintiffs to have properly filed their application for a prejudgment remedy, they were required to attach their proposed unsigned writ, summons and complaint to their application. The
Connecticut Supreme Court has consistently "adhered to these principles of strict construction dealing with various aspects of prejudgment remedy statutory schemes." Feldman v. Sebastian, supra, 261 Conn. 725; see also Wojeck v. Rizzardi, supra.
In the present case, the court denied the prejudgment remedy and, thus, the defendants have suffered no harm or prejudice by the plaintiffs' non-compliance with General Statutes §§ 52-578c(a). On June 26, 2006 the plaintiffs served the defendants with their signed writ and summons and complaint and their application for a prejudgment remedy. The application and the signed, writ, summons and complaint were returned to the court on July 6, 2006, prior to the originally scheduled hearing date, which was July 10, 2006. When, subsequently, the court ruled it no longer had jurisdiction to hear the prejudgment remedy hearing, the plaintiffs' signed writ, summons and complaint were not effected. See Burgess v. Burgess, Superior Court, judicial district of Waterbury at Waterbury No. CV04-4000033S (Mar. 28, 2005, Agati, J.), 39 Conn. L. Rptr. 30.
The defendants have not been prejudiced by the service upon them of a signed writ, summons and complaint, as they had a truly substantive opportunity to be heard before the court on the merits of the application for a prejudgment remedy, and, in fact, were successful in having said application dismissed for non-compliance with General Statutes § 52-278j(b). See Nytko v. Piazza, Superior Court, judicial district of Ansonia-Milford at Derby, No. CV05-4002378S (Oct. 24, 2005, Nadeau, J.), 40 Conn. L. Rptr. 206.
General Statutes § 278d(b) provides that if the court does not grant the prejudgment remedy application for any reason, "only a summons and complaint may be issued and served." Section 278d(b) also allows a plaintiff to alter the return date of the writ, summons and complaint or the summons and complaint, as the case may be. As the defendants already have a signed copy of the writ, summons and complaint in their hands, there seems to be no reason for demanding that the plaintiffs re-serve the complaint. See Nytko v. Piazza, supra. The legislature in General Statutes §§ 52-278h and 52-278m have acknowledged that an action can be filed prior to an application for a prejudgment remedy and does not require a second service of a writ, summons and complaint when an application for a prejudgment remedy is filed in an existing action. The fact that a signed writ summons and complaint was filed concurrently with the application for a prejudgment remedy, while fatal to the application, is not fatal to the institution of the underlying claim, which is the subject of the lawsuit. An application for prejudgment remedy "at any time after" the institution of an action was intended by the legislature to be a broad expansion of time in which the remedy could be used. Brookfield v. Greenridge, Inc., 35 Conn.Sup. 49, 51, 393 A.2d 131635 (1977).
Sec. 52-278h. Application for prejudgment remedy filed by the plaintiff.
The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.
Sec. 52-278m. When personal service not required.
Whenever a prejudgment remedy is sought under the provisions of sections 52-278h or 52-278i against a party who has previously filed a general appearance in such action, personal service of any application or order upon such party shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action.
The purpose of the prejudgment remedy statutes are to protect defendants from the taking of their property by attachment before the merits of the plaintiffs claims can be established. In this case, the plaintiffs' lack of strict compliance with the prejudgment remedy statutes has resulted in a dismissal of the application for a prejudgment remedy. However, the plaintiffs continue to have a right to proceed with the underlying claim, and the defendants cannot rely upon the prejudgment remedy statutes to protect them from the allegations of the underlying claim by the plaintiffs. Accordingly, for the reasons set forth herein, the motion to dismiss is denied.
The court's rulings herein are limited to the jurisdictional claims raised by the defendants in their motion to dismiss regarding the plaintiffs' lack of strict compliance with the prejudgment remedy statutes. The court has not addressed any questions regarding additional procedural or jurisdictional defects that may be raised by the defendants regarding the underlying action.