Opinion
FSTCV175016849S
06-14-2018
Mario VIOLA v. Angelique FLANAGAN
UNPUBLISHED OPINION
TAGGART D. ADAMS, JUDGE TRIAL REFEREE
FACTS
Before the court is a motion to dismiss a prejudgment remedy granted by this court on December 4, 2017. The plaintiff, Mario Viola, commenced a prejudgment remedy proceeding against the defendant, Angelique Flanagan, by way of a proposed unsigned complaint on July 13, 2017. The court held a hearing on the prejudgment remedy application on November 20, 2017, and granted a prejudgment remedy in favor of the plaintiff in the amount of $700,000. See Viola v. Flanagan, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-175016849-S (December 4, 2017, Adams, J.T.R.).
The defendant now moves to dismiss the prejudgment remedy on the grounds that the plaintiff failed to comply with General Statutes § 52-45b and § 52-278j, and Practice Book § 8-1. The defendant argues that the court lacks subject matter jurisdiction over the prejudgment remedy because the plaintiff failed to serve a summons and complaint within thirty-days after this court issued the prejudgment remedy. The defendant further asserts that the plaintiff failed to comply with Practice Book § 8-1, which requires, among other things, that a plaintiff use form JD-CV-1 to commence a civil action. The plaintiff objects on the grounds that he timely served the defendant with a summons and complaint on December 29, 2017. The court heard argument on the defendant’s motion on April 16, 2018, and reserved decision.
General Statutes § 52-45b provides in relevant part: Unless otherwise provided by rule, the forms of legal process for commencement of civil actions may be as follows:
General Statues § 52-278j(a) provides: "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."
Practice Book § 8-1(a) provides in relevant part: "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 ... 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-CV-1 in other civil actions ..."
DISCUSSION
A motion to dismiss "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." "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] lacks jurisdiction to consider the merits of a case over which it is without jurisdiction ... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings ..." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012); see also Practice Book § 10-33.
After a careful review of the relevant statutes and rule, the court concludes that it has subject matter jurisdiction over the plaintiff’s prejudgment remedy. A prejudgment remedy is subject to dismissal if a plaintiff fails to serve and return to the court a writ, summons and complaint, within thirty days after the court grants a prejudgment remedy. See General Statutes § 52-278j (a). "[W]here the language of the statute is clear and unambiguous, the courts cannot, by construction, read into statutes provisions which are not clearly stated." Czajkowski v. Planning & Zoning Board, 14 Conn.App. 283, 287-88, 540 A.2d 716 (1988).
In this case, the plaintiff complied with § 52-278j(a). The court granted the prejudgment remedy on December 14, 2017. Shortly thereafter, on December 29, 2017, the plaintiff served a summons and complaint on the defendant. The plaintiff did not use the preprinted form JD-CV-1 prepared by the judicial department to commence this civil action. Rather, the plaintiff used a summons form virtually identical to the writ of attachment form provided under § 52-45b(2). See footnote one of this opinion. The defendant argues that this summons form is inappropriate because § 8-1(a) requires the plaintiff to use form JD-CV-1.
The defendant’s argument has no merit. The very rule she cites also provides that form JD-CV-1 is not required in cases where an attachment is sought. Specifically, Practice Book § 8-1(c) and form JD-CV-1 instruct that form JD-CV-1 is not to be used in "any action or proceedings in which an attachment, garnishment or replevy is sought." See Practice Book § 8-1(c)(7); JD-CV-1 Instruction 5(g). The plaintiff complied with this instruction and served a writ, summons and directions for attachment using the writ of attachment form provided in § 52-45b(2). Accordingly, the court has subject matter jurisdiction over the plaintiff’s prejudgment remedy. See, e.g., Bohonnon Law Firm, LLC v. Baxter, 131 Conn.App. 371, 27 A.3d 384 (2011) ("[a]lthough the plaintiff did not use form JD-CV-1, which is the preprinted civil summons form prepared by the judicial department, the record reveals that the plaintiff’s summons substantively complied with § 52-45b ...").
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is denied.
(2) Writ of attachment before the Superior Court.
To any proper officer:
By authority of the state of Connecticut, you are hereby commanded to attach to the value of ... dollars the real or personal property of A.B. of ... (list address or last known address) and him summon to appear before the superior court for the judicial district of ... on the ... Tuesday of ..., 20 ..., the appearance not to be in person but to be made by A.B. or his attorney by filing a written statement of appearance with the clerk of the court whose address is ..., (including street number and town) on or before the second day following the return date then and there to answer to C.D. of ... in a civil action, in which the plaintiff complains and says:
I J.W., the subscribing authority, hereby certify that I have personal knowledge as to the financial responsibility of the plaintiff, and deem it sufficient; or, E.F. of ... is recognized in $ ... to prosecute, etc.
Of this writ with your actions thereon make due return.
Dated at ... this ... day of ..., 20 ...
J.W., Commissioner of the Superior Court.