Opinion
No. CV 05-4004932
May 24, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This partition action was commenced by the plaintiff by the filing of the summons and complaint, which had been served upon the defendants and which bore a return date of May 31, 2005. On May 11, 2005, counsel for the defendants filed an appearance. On June 10, 2005, the defendants filed the instant motion to dismiss on the grounds that the summons served upon them was defective in that it did not contain the signature of a Commissioner, Judge or Clerk of the Superior Court. As a result, the defendants claim, this court is without personal jurisdiction over the defendants. On June 16, 2005, the plaintiff filed his response to the motion, conceding the defect but averring that the process can be cured pursuant to CGS § 52-123 and that therefore dismissal was neither required nor appropriate. The issue presented is whether a summons, defective in this fashion, requires dismissal or whether the curative language of CGS § 52-123 may be applied to save the cause of action. For the reasons set forth below, the motion to dismiss is GRANTED.
Facts
As indicated, the facts germane to this motion are not in dispute. In this matter, the plaintiff, who is not a clerk, commissioner or judge of the superior court, signed the summons. The plaintiff concedes this defect but the parties disagree as to the effect of such a defect.
Discussion
A Motion to Dismiss is the appropriate vehicle by which to assert that the court lacks jurisdiction, to include persona] jurisdiction. P.B. § 10-30, 31; Upson v. State, 190 Conn. 622, 624 (1983); Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13 (1995). The motion to dismiss can also attack venue, sufficiency of process or sufficiency of service of process. P.B. § 10-31.
"The Superior Court may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction. Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Citations omitted; internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-1-2 (1999).
A defendant may contest the personal jurisdiction of the court by filing a motion to dismiss within thirty days of the filing of an appearance. Practice Book § 10-32. The defendants filed an appearance on May 11, 2005 and filed their motion to dismiss on June 10, 2005. Therefore, no waiver of the right to contest personal jurisdiction occurred.
The defendants challenge the exercise of personal jurisdiction over it because the summons in this matter was not properly authorized. Practice Book § 8-1 provides, in pertinent part, "[m]esne 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." (Emphasis added.) Similarly, General Statute § 52-45a, provides, "[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment . . . 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." (Emphasis added.) Thus, a summons is a statutory prerequisite to the commencement of a civil action and "is an essential element to the validity of the jurisdiction of the court." (Citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526 (1991).
The summons in this case, also known as JD-CV-1, contains a signature line for either a Commissioner of the Superior Court or an Assistant Clerk of the Court. The signature is the authorization provided for under Practice Book § 8-1 and CGS § 52-45a to command "any proper officer" to serve the summons and complaint, "by authority of the State of Connecticut." Boyles v. Preston, 68 Conn.App. 596, 605 (2002).
A summons is much like the citation used to commence an administrative appeal, Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 550-51 (1992), and so the court also looks to our case law regarding the impact of a defective citation on the jurisdiction of the parties in an administrative appeal. In Gadbois v. Planning Commission of the Town of East Lyme, 257 Conn. 604 (2001), the Supreme Court stated:
A citation is a writ issued out of a Court of competent jurisdiction commanding a person therein named to appear on a day named to do something therein mentioned . . . The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. Without it, the officer would be little more than a deliveryman . . .
Id. at 607. Indeed, an improperly executed citation implicates the personal jurisdiction of the court. Johnson v. Zoning Board of Appeals, 166 Conn. 102, 107-08 (1974).
Here, as conceded by the parties, in the absence of the required signature, the summons was defective. Without the signature of a commissioner of the Superior Court or a judge or an assistant clerk, the marshal was not legally authorized to serve the complaint and summons upon the defendants. He was, in effect, little more than a delivery man. See, Gadbois v. Planning Commission, supra.
Notwithstanding the language of Gadbois, the plaintiff argues that the summons, though defective, is amendable under CGS § 52-123 which provides: "[n]o 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." The court disagrees with the plaintiff.
This statute "is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process. We have never held to the contrary." Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434 (1989). "[D]espite its facially expansive language, 52-123 and its predecessors have been uniformly limited in their application to defects in the writ . . . [T]here is uncontroverted authority to the effect that defects in the process are voidable and therefore subject to abatement. We see no reason to disturb this well recognized distinction." (Citation omitted and footnote omitted). Id., at 435. Indeed, CGS § 52-123 cannot be used to cure the defect at issue in this case. Hillman v. Town of Greenwich, 217 Conn. 520, 527 (1991). See also, Falcon Paving, Inc. v. Koch Builders, 2005 Ct.Sup. 11731, 39 Conn. L. Rptr. 640 (August 1, 2005, Shapiro, J.) (unsigned summons was not curable and rendered the court without personal jurisdiction over the defendants); Karpinski v. Spodick, 7 Conn. L. Rptr. 250 (August 20, 1992, Maiocco, J.) (same); McDaniel v. McDonald, Superior Court, judicial district of Litchfield, Docket No. 0060222 (October 14, 1992, Pickett, J.) (an unsigned citation deprived the court of jurisdiction).
The motion to dismiss is GRANTED.