Opinion
No. CV09 5027402
August 18, 2010
MEMORANDUM OF DECISION
MOTION TO DISMISS
The defendants have filed a motion to dismiss the prejudgment remedy attachment granted on January 6, 2010 by the court (Gilardi, J.), as well as, any residual underlying action. The basis of the motion to dismiss is the failure of the plaintiff to comply with General Statutes § 52-578j and §§ 52-278d, 52-45a, 52-45b and Practice Book §§ 7-6 and 8-1.
The plaintiff commenced an prejudgment attachment proceeding against the defendants by way of an proposed unsigned complaint dated August 31, 2009, pursuant to General Statutes § 52-278 et seq. An evidentiary hearing was held on November 29, 2009. The court's (Gilardi, J.) decision granting the prejudgment remedy in the amount of $1,500,000.00 is dated January 6, 2010. See. Sammarco v. Kostowski, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09 5027402 (Jan. 6, 2010, Gilardi, J.).
The decedent Melanie Sammarco died as a result of injuries received in the house fire. Mattia Sammarco is the Administrator of her estate. Mattia Sammarco also sustained personal injuries in the fire. The defendants are alleged to have owned and rented to Melanie Sammarco a second floor apartment at 13 Burwell Street, Norwalk, Connecticut.
On May 26, 2010, the court (Gilardi, J.) Filed a Revised memorandum of Decision.
The defendants argue that following the court's decision on January 6, 2010, the plaintiff has failed to comply with General Statutes § 52-278j in that the plaintiff did not serve a signed writ, summons and complaint on the defendants and did not return these documents to the court within thirty days after the granting of the prejudgment remedy. The defendants additionally argue the plaintiffs have failed to re-serve any summons at all; has failed to denominate a return date on the document that the plaintiffs did serve; has failed to serve the defendants with a signed complaint; and has improperly indicated that the case was pending in the Judicial District of New Haven, rather than the Judicial District of Fairfield. The defendants conclude, therefore, that due to failure to comply with the timely service of a signed writ, summons and complaint and its return to court per the relevant prejudgment remedy statutes the prejudgment remedy must be dismissed. The defendants also request that the court dismiss any purported underlying action as the plaintiffs have also failed to properly initiate any lawsuit.
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. The grounds for the granting of a motion to dismiss are set forth in Practice Book § 10-31. 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. "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; 18 Conn. L. Rptr. 409] (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). Our 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. 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 right to attach property on mesne process is created and regulated by statute." Harris v. Barone, 147 Conn. 233, 234, 158 A.2d 855 (1960). "[A] plaintiff's attachment of a defendant's real property is valid only when the plaintiff strictly follows the applicable statute." Feldman v. Sebastiani, 261 Conn. 721, 725, 805 A.2d 713 (2002). "[T]he statute [regarding attachments] is . . . exclusive. Being in derogation of both common right and common law, it is one to be strictly interpreted and pursued. Its provisions and requirements may not be disregarded with impunity, nor waived or changed by courts." (Citation omitted, internal quotation marks omitted.) Id.
Since 1973, the authority for pretrial property attachment has been spelled out in General Statutes §§ 52-278a through 52-278n. General Statutes 52-278j reads 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.
(c) An application for a prejudgment remedy or a prejudgment remedy which is granted but not served may be withdrawn in the same manner as a civil cause of action.
The court begins by reviewing well established precedent regarding prejudgment remedies. "[A] plaintiff's attachment of a defendant's real property is valid only when the plaintiff strictly follows the applicable statute." Feldman v. Sebastiani, 261 Conn. 721, 725, 805 A.2d 713 (2002). "[T]he statute [regarding attachments] is . . . exclusive. Being in derogation of both common right and common law, it is one to be strictly interpreted and pursued. Its provisions and requirements may not be disregarded with impunity, nor waived or changed by courts." (Citation omitted, internal quotation marks omitted.) Id. "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." Id., 725-26.
The statute governing prejudgment remedies clearly states that "[i]f 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 . . . the court shall dismiss the prejudgment remedy." General Statutes § 52-278j(a). "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). The language of § 52-278j(a) is to be strictly construed.
Public Act 91-315 changed the statutory language of § 52-278j(a) from a statement that the court may dismiss the prejudgment remedy to a statement that the court "shall" dismiss the prejudgment remedy, if the writ, summons and complaint are not filed within the thirty-day period. 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 legislature's use of the word `shall' generally evidences an intent that the statute be interpreted as mandatory." Todd v. Glines, 217 Conn. 1, 8, 583 A.2d 1287 (1991). "The change in the statutory language from may to shall indicates that the legislature made an affirmative selection of words with a specific intent to make use of each word's distinctive meaning . . . Ordinarily, the word shall connotes that the directive is mandatory, not permissive . . . Thus, [i]f read according to the commonly approved usage of its language, the statute then speaks for itself . . ." (Citations omitted) Burgess v. Burgess, supra.
The signed writ, summons and complaint in this matter were not served within thirty days after the entry of the order of the court granting the prejudgment remedy on January 6, 2010. "[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 prejudgment statute is unambiguous. If the plaintiff does not serve the application within thirty days from the date the application is granted, dismissal is mandatory." Graichen v. Metro Marketing Resources, Superior Court, Judicial District of Fairfield at Bridgeport, No. CV 04-041 06 20 S (Jan. 28, 2005, Dewey, J.) 38 Conn. L. Rptr. 598. Since the thirty-day requirement in which the plaintiff had to serve and return to the court the writ, summons and complaint began to run on January 6, 2010 and expired, the court lost subject matter jurisdiction over the prejudgment remedy. The prejudgment remedy is, therefore, dismissed.
The court next considers the status of the writ, summons and complaint filed by the plaintiff on March 2, 2010 following the defendants' filing of the subject motion to dismiss and almost two months after the granting of the prejudgment remedy. A chronology of the events subsequent to the granting of the prejudgment remedy in this matter will assist in clarifying the issues.
On January 7, 2010, the Memorandum of Decision (Gilardi, J.) granting the plaintiff's prejudgment remedy request was mailed by the court to the parties. On January 19, 2010, the plaintiff re-served the defendants with prejudgment remedy related documents, including a still unsigned complaint. On January 25, 2010, the defendants filed a Motion to Re-Argue the court's decision granting the prejudgment remedy. February 8, 2010 marked the expiration of the thirty-day period by which the plaintiff had to comply with General Statutes § 52-278j. On February 18, 2010, the defendants filed the subject Motion to Dismiss for the plaintiff's lack of compliance with General Statutes § 52-278j. On February 25, 2010 the plaintiff served a new writ, summons and complaint, dated February 23, 2010, on the defendants. On March 2, 2010, the plaintiff files the new writ, summons and complaint with the court, utilizing the e-filing service and not referencing these documents to the existing docket number.
The defendants argue that following the court's decision on January 6, 2010, the plaintiff failed to comply with General Statutes § 52-278j in that the plaintiff did not serve a signed writ, summons and complaint on the defendants and did not return these documents to the court within thirty days after the granting of the prejudgment remedy. Additionally, the defendants argue that prior to the filing of this motion to dismiss on February 18, 2010, the plaintiffs failed to re-serve any summons at all; failed to denominate a return date on the document that the plaintiffs did serve; has failed to serve the defendants with a signed complaint; and has improperly indicated that the case was pending in the Judicial District of New Haven, rather than the Judicial District of Fairfield. The defendants in their motion to dismiss argued that due to failure to comply with the timely service of a signed writ, summons and complaint and its return to court should result in the granting of a dismissal by the court. The court, as noted, has agreed to the dismissal of the prejudgment remedy.
However, on March 2, 2010, in an attempt to respond to the issues raised by the defendants' motion to dismiss, the plaintiff filed a writ, summons and complaint, signed on February 23, 2010, bearing a return date of March 30, 2010, and returnable to the Judicial District of Fairfield at Bridgeport. A copy of this writ, summons and complaint was served on the defendants on February 25, 2010. The new complaint utilized the JD-CV-1 Summons sheet, which is inappropriate, as JD-CV-1 is not to be used in "any action or proceedings in which an attachment, garnishment or replevy is sought." See JD-CV-1, Instruction 6(g); see also Practice Book § 8-1. The writ, summons and complaint filed on March 2, 2010 also differs in its allegations from the original unsigned writ, summons and complaint. While the unsigned complaint and the substituted complaint deal with the same basic subject matter, which was a house fire occurring on May 29, 2009 and contained three allegations of negligence, the newly-filed signed complaint contains fourteen allegations of negligence.
Sec. 8-1. Mesne Process
(a) Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with the following judicial branch forms prescribed by the chief court administrator: Form JD-FM-3 in family actions, Form JD-HM-32 in summary process actions, and Form JD-CV-1 in other civil actions, as such forms shall from time to time be amended. Any person proceeding without the assistance of counsel shall sign the complaint and present the complaint and proposed writ of summons to the clerk; the clerk shall review the proposed writ of summons and, unless it is defective as to form, shall sign it.
(b) Form JD-FM-3, Form JD-HM-32, and Form JD-CV-1 shall not be used in the following actions and proceedings:
(1) Applications for change of name.
(2) Proceedings pertaining to arbitration.
(3) Probate appeals.
(4) Administrative appeals.
(5) Verified petitions for paternity.
(6) Verified petitions for support orders.
(7) Any actions or proceedings in which an attachment, garnishment or replevy is sought.
(8) Applications for custody.
(9) Applications for visitation.
(c) A plaintiff may, before service on a defendant, alter printed forms JD-FM-3, JD-HM-32, and JD-CV-1 in order to make them conform to any relevant amendments to the rules of practice or statutes.
It is clear that the plaintiff's initial service of prejudgment remedy related documents including an unsigned complaint, subsequent to the granting of the prejudgment remedy was fatal to the prejudgment remedy and did not commence the underlying civil suit. In Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 236, 763 A.2d 54 (2000), the Appellate Court ruled that service of an unsigned writ of summons and complaint does not have the effect of commencing a civil action, and that "[t]he plaintiff's failure to sign the writ of summons and complaint is fatal to her claim." Id., 240. "That civil actions must be commenced with a signed writ of summons or attachment is a matter of significance. As this court previously has opined, "[t]he subject of signing and issuing process in civil actions is one of consequence. Such signing is one of the processes of law by which a man may be deprived of his liberty and property. It is carefully guarded. It is not to be done indiscriminately . . . The signing of a writ by a person as a commissioner of the Superior Court is not a mere ministerial act . . ." (Citations omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 556, 944 A.2d 329 (2008).
We conclude that an application for a prejudgment remedy does not commence a civil action for purposes of a subsequent claim . . . First, there is no service of the requisite signed writ of summons. Additionally, the language of the prejudgment remedy statutes, § 52-278a et seq., in several instances previously set forth herein, makes it clear that proceedings for prejudgment remedy applications and civil actions are separate and distinct, with a prejudgment remedy application generally preceding the filing of the civil action. Finally, in addition to the differences regarding the process for initiating these two legal proceedings, the purpose of filing a civil action is fundamentally different from the purpose of obtaining a prejudgment remedy. A prejudgment remedy application is brought as a prelude to the filing of a civil action, and is meant to determine whether security should be provided for any judgment ultimately recovered by the plaintiff if he or she is successful on the merits of the civil action. A civil action, in contrast, resolves the merits of the parties' claims, and can be filed irrespective of whether the plaintiff was successful in his or her prior pursuit of a prejudgment remedy. Accordingly, we conclude that the plaintiff cannot base its claim for [vexatious litigation] . . .
Id., 560-61.
The plaintiff's initial re-served documents also lacked a return date. The return date "is a necessary component of a writ by which a civil action is commenced. General statutes § 52-45a." Howard v. Robertson, 127 Conn.App 621, 626 ( ) "Both the time within which the process must be served after its issuance and the time within which the writ must be filed with the court after service are determined by reference to the `return day.'" R. Bollier, N. Cioffi, K. Emmett, J. Kavenewsky, L. Murphy, Stephenson's Connecticut Civil Procedure (3d Ed. 1997) § 16a, p. 31. "[T]he prejudgment remedy documents lacked a return date . . . The absence of a return date on the writ . . . is unforgivable." Raynor v. Hickock Realty Corp., supra, 61 Conn.App. 242.
General Statutes § 52-45a provides the following procedure for initiating a civil action:
Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.
General Statutes § 52-45a; see also, Practice Book § 8-1(a) ("Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable"). The plaintiff's initial re-service of prejudgment remedy documents, being unsigned and lacking a return date, did not commence his civil action.
The defendants' motion to dismiss is directed to the court's lack of subject matter jurisdiction. The issue is whether the court retains subject matter jurisdiction over the signed writ, summons and complaint that was filed March 2, 2010, despite the fact that the court has determined that the prejudgment remedy must be dismissed for non-compliance with Sec. 52-278j. In other words, does the plaintiff have any viable action remaining under the original prejudgment remedy action, as the motion to dismiss was filed prior to the plaintiff's filing of the re-served signed writ, summons and complaint on March 2, 2010?
A motion to dismiss is the proper procedural device to raise a claim of lack of subject matter jurisdiction. Practice Book § 10-31. "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings . . . [A] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . [W]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Hamilton v. United Services Auto. Ass'n, 115 Conn.App. 774, 780, 974 A.2d 774 (2009); ABB Automation, Inc. v. Zaharna, 77 Conn.App. 260, 263-64, 823 A.2d 340 (2003).
"[O]nce the question of lack of [subject matter] jurisdiction is raised, it must be disposed of no matter in what form it is presented." (Internal quotation marks omitted.) Branford v. Monaco, 48 Conn.App. 216, 219 n. 4, 709 A.2d 582, cert. denied, 245 Conn. 903, 719 A.2d 900 (1998). "Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . ." (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008). "[P]ractice Book § 10-33 states: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." "Whenever a claim of lack of jurisdiction is brought to the court's attention, it must be resolved before the court can proceed." (Citation omitted.) Bank of New York v. Bell, 120 Conn.App. 837, 843 (2010). "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction . . ." (Citations omitted.) Baldwin Piano Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982) (holding that the trial court should have addressed the defendants' jurisdictional challenge before ruling on the plaintiff's motion for contempt.) Id., 298. "Whenever a claim of lack of jurisdiction is brought to the court's attention, it must be resolved before the court can proceed." Doe v. Department of Public Health, 52 Conn.App. 513, 517, 727 A.2d 260 (1999).
As noted earlier herein, the plaintiff's application for a prejudgment remedy did not commence a civil action for purposes of his subsequent claim Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 556. As a result of the plaintiff's non-compliance with General Statutes § 52-278j, by not serving a signed writ, summons and complaint on the defendants and by not returning these documents to the court within thirty days after the granting of the prejudgment remedy, the court has dismissed the prejudgment remedy. As such, there is no underlying pending action pending upon which the plaintiff can now "bootstrap" his subsequent attempt at filing a new civil action. "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." General Statutes § 52-278j, "speaks of the process of commencing the civil action as a distinct proceeding that follows the acquisition of a prejudgment remedy if the latter is to remain viable beyond thirty days." Id., 559.
The plaintiff cannot claim to have strictly complied with General Statutes § 52-278j when he substituted a different writ, summons and complaint from those he submitted with his prejudgment remedy application. As the underlying prejudgment remedy action has been dismissed, no civil action has been commenced within that action by the service and e-filing of the writ, summons and complaint dated February 23, 2010 on March 2, 2010. The plaintiff was required to file a new civil action.
Accordingly, the court's granting of the defendants' motion to dismiss is applicable, not only to the prejudgment remedy granted by Judge Gilardi, but applies to any purported residual remaining action that was attempted by the plaintiff's filing of the writ, summons and complaint on March 2, 2010.