Opinion
No. CV 030195532 S
November 26, 2003
MEMORANDUM OF DECISION
The plaintiff, Jeffrey S. Bagnell, brought this suit against two defendants, Washington Row II Preservation Society, Inc. (association) and the board of directors of Washington Row II Preservation Society (board). According to the return of service, the marshal served both defendants by leaving a copy of the summons and complaint in the hands of Lynne D'Eramo, the person in charge at the time of service: Aspen Management Inc. for the board and Washington Row II Preservation Society. The board moves to dismiss the complaint due to insufficiency of service of process. The board argues that the members of the board were not properly named in the suit, that process was not properly served upon it as required by General Statutes § 52-57 and, therefore, the court does not have personal jurisdiction over the board. The plaintiff did not file an objection to the motion to dismiss, but instead filed a motion to amend the complaint pursuant to Practice Book § 10-60 to which he attached a proposed amended complaint. In the amended complaint, the plaintiff names two defendants, Washington Row II Preservation Society, Inc. and Jennifer Marco, president of the board of the association. The plaintiff did not, however, file an amended summons or return of service indicating service of process on Marco.
"The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or 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 . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 721-22, 826 A.2d 107 (2003).
"Our courts have refrained from interpreting rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects . . . General Statutes § 52-123 protects against just such consequences by providing that no proceeding shall be abated for circumstantial errors as long as there is sufficient notice to the parties." (Citations omitted.) First Federal Savings Loan Ass'n of Rochester v. Pellechia, 31 Conn. App. 260, 264, 624 A.2d 395, cert. denied, 227 Conn. 923, 632 A.2d 701 (1993). "When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer." (Internal quotation marks omitted.) Brennan v. Fairfield, 255 Conn. 693, 707, 768 A.2d 433 (2001). "A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant, rather than the legal nature of his existence." Lussier v. Department of Transportation, 228 Conn. 343, 350, 636 A.2d 808 (1994).
"No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." General Statutes § 52-123.
"[T]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed." (Internal quotation marks omitted.) Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995). The threshold question is "whether the plaintiff had intended to sue the proper party or whether [he] had erroneously misdirected [his] action." Id. In Pack v. Burns, 212 Conn. 381, 385, 562 A.2d 24 (1989), the court prescribed a three-prong test to determine whether the misdescription is "a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice." Andover Limited Partnership I v. Board of Tax Review, supra, 232 Conn. 397.
In Andover, the plaintiff filed an action to challenge a decision by the board of tax review of the town of West Hartford (board) affirming a 1989 tax assessment on property owned by the plaintiff. The plaintiff filed an application with the trial court appealing the decision, to which it attached a citation and recognizance that the plaintiff had served process upon the assistant town clerk pursuant to General Statutes § 52-57(b)(1), naming the "Board of Tax Review of the Town of West Hartford" as the defendant. Id., 393-94. The town filed an appearance "for all defendants" in the action and subsequently filed an answer to the complaint that was signed "Defendant, Town of West Hartford." Id. Two years later, the town filed a motion to dismiss claiming that the court lacked subject matter jurisdiction to hear the case. The town contended that General Statutes § 12-117a requires a plaintiff to include the town in the citation and that the plaintiff's failure to name the town, rather than the board, as the defendant constituted a defect that deprived the court of subject matter jurisdiction. The plaintiff then filed a request to amend the citation and recognizance pursuant to § 52-123 in order to name the town, rather than the board, as defendant. The town objected to the request, contending that § 52-123 is not available to cure a defect that implicates subject matter jurisdiction. In reversing the trial court's decision, the Connecticut Supreme Court held that "the naming of the board instead of the town was a circumstantial error, mistake or defect under § 52-123." Id., 401. The court further held that "because the language of § 52-123 — `[n]o writ . . . shall be . . . set aside . . . for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court' — is mandatory rather than directory, the plaintiff was entitled to correct its error by amendment." Id.
In the present case, the plaintiff brought suit against the board and described it as "those individuals currently identifying themselves as duly elected directors of the Association." This indicates that the plaintiff intended to sue the members of the board. Although the plaintiff did not name the board members by their names or by their corporate titles, this does not necessarily create confusion or question as to the identity of these parties.
In addition, the members of the board had actual notice of the lawsuit and either knew or should have known that they were intended defendants because the board's attorney filed an appearance for both defendants. Thus, it cannot be said that the board was misled to its prejudice because the plaintiff was not as specific as he should have been in his complaint. The plaintiff has not misconstrued the identity of the board members but rather its legal nature. Four Beaches Condominium Assoc. v. Brescia Plumbing Heating, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 96 0384124 (October 17, 1997, Zoarski, J.) ( 20 Conn. L. Rptr. 442) (December 15, 1997). Therefore, the plaintiffs' error was a misdesignation of the parties or a case of the right party being sued under the wrong description.
Next, the board argues that process was not properly served upon it as required by General Statutes § 52-57. Section 52-57(a) states: "Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state . . ." General Statutes § 52-57. The defendant ekes Thompson v. Kerr for the proposition that, "[a]lthough Connecticut courts do not seem to address this issue with respect to a board of directors specifically, the federal courts have determined that service upon a board of directors cannot be made at corporate offices, but rather must be made upon the individual defendants." (Defendant's memorandum, p. 5.); see, e.g., Thompson v. Kerr, 555 F. Sup. 1090, 1093 (S.D. Ohio 1982) (motion to dismiss for lack of jurisdiction granted where board of directors were served at their corporate offices, rather than individually, at their dwelling homes, pursuant to Federal Rule 4(d)(1)).
In the present case, the marshal served the board by leaving process with Washington Row's management company and agent for service of process, Aspen Management, Inc. (Aspen). Even though this was appropriate service for Washington Row as a corporation, it is not appropriate for service on the individual board members. At present no statute authorizes a plaintiff to serve a corporation's board of directors with process either through the corporation's agent or its management company. Therefore, according to § 52-57(a), each member of the board should have been served with process either in hand or at their usual place of abode in this state.
Accordingly, the court grants the board's motion to dismiss and denies the plaintiff's motion to amend unless the plaintiff properly files an amended complaint and properly serves it on the defendants named therein within thirty days of the date of this order.
D'ANDREA, JUDGE TRIAL REFEREE.