Opinion
No. CV0850017524S
January 6, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS
The defendants have filed a motion to dismiss the Stipulated Prejudgment Remedy of September 23, 2008 and the complaint of the plaintiffs for a lack of subject matter jurisdiction. The defendants argue that the plaintiffs failed to comply with the provisions of General Statutes § 52-278j(a), as well as, the court's order regarding prompt service of the signed writ, summons and complaint. The defendants claim that the plaintiffs' failure to comply with the mandatory statutory time limits of § 52-278j(a) deprives this court of subject matter jurisdiction.
The plaintiffs filed an Application for Prejudgment Remedy on July 29, 2008. At that time, the defendants were served with an unsigned copy of the writ, summons and complaint in compliance with the statutes governing an application for a prejudgment remedy. On September 23, 2008, the parties entered into a stipulated order regarding the plaintiffs' application for a prejudgment remedy. Pursuant to said stipulation which was approved by the court and entered into in the record, the court (Bellis, J.) issued an order which required the plaintiffs to immediately "serve and return the proposed Complaint." The court also ordered that "thereafter this action will be immediately stayed pending resolution, through appeal, if any, of the matter of Empy's Day Spa, LLC and 179 Hamilton Avenue Associates, LLC v. Planning and Zoning Board of Appeals of the Town of Greenwich, Docket No. FST-CV-08-4014369-S, currently pending in the Connecticut superior Court, Judicial District of Stamford/Norwalk at Stamford (hereinafter the "Estoppel Action") . . ." The plaintiffs, thereafter, failed to serve and return a signed version of the proposed Complaint for nearly six months.
The signed civil summons form is dated April 16, 2009. The matter bears a return date of May 5, 2009.
I 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
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.
Clearly, the signed writ, summons and complaint were not served within thirty days after the entry of the stipulation of the parties on September 23, 2008. The stipulation was an agreement reached due to the plaintiffs' application for a prejudgment remedy. However, the parties disagree as to whether the failure to comply with the thirty-day time limit set forth in § 52-278j requires a dismissal of the stipulation, as well as, the complaint itself.
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. If 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." In re Steven M., 264 Conn. 747, 757, 826 A.2d 156 (2003). Nonetheless, our Connecticut Supreme Court has consistently adhered to the principles of strict construction when dealing with various aspects of prejudgment remedy statutory schemes. Feldman v. Sebastian, supra, 261 Conn. 725; see also Wojeck v. Rizzardi, supra.
Connecticut Practice 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. In Melendez v. Valley Metallurgical Processing Co., 86 Conn.App. 880, 884 (2004) the court restated the rule on subject matter jurisdiction:
Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.
(Internal quotations marks omitted.) Figueroa v. C S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).
The question for the court is whether the plaintiff's non-compliance with the prejudgment remedy statutes is fatal to the stipulation of the parties and the plaintiffs' underlying action, as well, which is evidenced by the return of their signed writ, summons. The defendants argue the prejudgment statutes are unambiguous and if the plaintiff does not serve the signed complaint within thirty days of the date an application is granted, a dismissal is mandatory. The purpose of the prejudgment remedy statutes are to protect defendants from the taking of their property by attachment before the merits of the plaintiff's claims can be established. In this case, the plaintiffs' lack of strict compliance with the prejudgment remedy statutes results in a dismissal of the application for a prejudgment remedy which resulted in a stipulation of the parties and an order of the court. It matters not, that the defendants did not comply with the terms of the stipulation and orders of the court.
While the court finds that the plaintiff's non-compliance with General Statutes § 52-278j is fatal to the stipulation of the parties, such non-compliance is not fatal to the underlying action. The violation of § 52-278j(a) may deprive the plaintiffs of the benefit of the prejudgment remedy, but it does not deprive the plaintiffs of the right to proceed with the underlying claim. The defendants cannot rely upon the prejudgment remedy statutes to protect them from the allegations of the underlying claim by the plaintiffs. See. Outdoor Serv. v. Custom Lawn Limb., Docket No. PJR-CV06-5003078S, Superior Court, judicial district of Fairfield at Bridgeport, (Mar. 13, 2007, Arnold, J.); 43 Conn. L. Rptr., 19.
This court is mindful of the plaintiffs' argument that the parties had reached a stipulated agreement upon which it could rely, and that the defendants have not been prejudiced in that the defendants have violated the agreement. Nevertheless, the statutory requirements of § 52-278j(a) control this present motion.
In the present case, the court granted the stipulated prejudgment remedy on September 23, 2008, and entered its orders in accordance with the stipulation at the request of the parties. The orders of the court were based on the application for a prejudgment remedy. The plaintiffs filed their signed complaint dated July 29, 2008, with a writ and summons dated April 16, 2009, following service on the defendants on April 22, 2009, which was more than thirty days after the granting of the remedy as mandated by § 52-278j. The return date for the present action was May 5, 2009. 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 September 23, 2008 and expired on October 23, 2008, before the plaintiff filed the mesne process with the court, the court lost subject matter jurisdiction over the prejudgment remedy. 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 prejudgment remedy is therefore dismissed. The writ, summons and complaint are not effected by this ruling.
Accordingly, the motion to dismiss is granted as to the stipulated order entered into as a result of the plaintiffs' application for a prejudgment remedy. The orders of the court which were issued at the request of the parties, pursuant to the stipulation which include a stay of the proceedings are hereby vacated and any such stay is hereby dissolved. The motion to dismiss the underlying complaint, bearing a return date of May 5, 2009 and Docket No. FBT-CV-08-5017524 is denied.
The court's ruling is limited only to the plaintiffs' lack of compliance with § 52-278j. The ruling does not address any other jurisdictional deficiencies which may be raised by the defendants in the future or the plaintiffs' right to file an additional application for a prejudgment remedy in the present action.