Opinion
WWMCV156009688S
01-25-2016
Vicki Davis v. Justin A. Phillips
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE (MOTION TO DISMISS (#112) AND MOTION TO AMEND CIVIL PROCESS (#116) SHORT CALENDAR, DECEMBER 7, 2015)
Harry E. Calmar, J.
On August 20, 2015, the plaintiff, Vicki Davis, filed a complaint against the defendants, Justin Phillips, Joan Cormier, Mirank, LLC D/B/A Domino's Pizza (Mirank), Sibfa, LLC D/B/A Domino's Pizza (Sibfa), and Geico General Insurance Company, pursuant to General Statutes § 52-592, the accidental failure of suit statute. The current suit is not the original action in this matter. The original action was brought in a timely manner and the defendants were properly served on September 18, 2013. That matter was returned to the court with a return date of October 29, 2013. The original action was dismissed by the court on August 18, 2014, for failure to diligently prosecute.
The five defendants will be referred to collectively as the defendants in this memorandum. Though this suit has been brought against five defendants, this motion to dismiss has been brought by only one of the defendants, Joan Cormier, who will be referred to as the defendant in this memorandum.
The complaint alleges five counts, however, only count four is relevant to the present motion to dismiss. Count four of the complaint is brought against Joan Cormier and alleges the following facts. On or about October 1, 2011, the plaintiff was driving her motor vehicle in a southerly direction on Norwich Road in Plainfield, Connecticut. At the same time and place, Justin Phillips was driving his motor vehicle directly behind the plaintiff's motor vehicle. Suddenly and without warning, Phillips caused the motor vehicle he was operating to strike the rear end of the plaintiff's motor vehicle, which had slowed and/or stopped for a dog in the road. The plaintiff sustained injuries and damages as a result of the impact. Count four of the complaint further alleges that the defendant was the owner and keeper of the dog that ran into the road in front of the plaintiff, which caused the plaintiff to brake and, in turn caused, in whole or in part, Phillips to crash into the plaintiff's motor vehicle. Specifically, count four of the complaint alleges that the defendant is strictly liable to the plaintiff for her injuries, damages, and losses pursuant to General Statutes § 22-357. The plaintiff alleges that, as a result of the collision, she suffered injuries and seeks damages.
Count one, alleging negligence, is brought against Justin Phillips. Counts two and three are brought against Mirank and Sibfa, respectively, pursuant to General Statutes § 52-183 and the common-law doctrine of vicarious liability, alleging that at the time of the alleged accident Phillips was acting as an agent, servant, and/or employee of Mirank and/or Sibfa. Count four is the subject of the present motion to dismiss and will be discussed in the text of this memorandum. Count five of the complaint is brought against Geico pursuant to the terms of the plaintiff's uninsured and underinsured motorist benefits contract and in accordance with General Statutes § 38a-336. It must also be noted that Justin Phillips, Mirank, and Sibfa filed a cross complaint for common-law indemnification against Joan Cormier on November 4, 2015, which is currently pending before this court.
Section 22-357 reads in relevant part: " If any dog does any damage to either the body or property of any person, the owner or keeper . . . shall be liable for the amount of such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog."
The Marshal's Return (the return) indicates that on August 13, 2015, Connecticut state Marshal Keith Niziankiewicz made a due and diligent search throughout his precincts to locate the defendant, but could not locate her at the address listed. The return further indicates that Niziankiewicz left a true and attested copy of the original writ, summons, complaint, and amount in demand with and in the hands of the clerk in charge at the office of Andres Ayala, Jr., Commissioner of Motor Vehicles for the State of Connecticut. On August 14, 2015, Niziankiewicz deposited a true and attested copy of the original writ, summons, complaint, and amount in demand with the post office addressed to the defendant at 1261 Norwich Road, Plainfield, Connecticut.
The mailed copy was sent certified, return receipt requested, number 7015 0640 0007 2642 6958.
On October 21, 2015, the defendant filed a motion to dismiss the action as it pertains to her on the ground that process was insufficiently served, and, therefore, the court lacks personal jurisdiction over her. The defendant filed a memorandum in support on October 22, 2015. The plaintiff filed an objection to the defendant's motion to dismiss and a memorandum in support of the objection on October 28, 2015. The defendant filed a reply to the plaintiff's objection to the motion to dismiss on December 7, 2015.
Although referred to by the plaintiff as a memorandum in support of the plaintiff's objection to the defendant's motion to dismiss, for the purposes of clarity, the aforementioned memorandum will hereinafter be referred to as the memorandum in opposition.
Also on October 28, 2015, the plaintiff filed a motion to amend civil process pursuant to § 52-72 and a memorandum in support. On November 6, 2015, the defendant filed an objection to the plaintiff's motion to amend civil process. Both matters were heard at short calendar on December 7, 2015.
DISCUSSION
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " The grounds which may be asserted in [a motion to dismiss] are: (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." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10-30(a).
" Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011). " [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. 400.
In her memorandum of law in support of her motion to dismiss, the defendant argues that the court lacks personal jurisdiction over her due to the insufficiency of service of process. Specifically, the defendant claims that she was served pursuant to General Statutes § 52-63, which is only available as a method of service upon the " operator or owner of a motor vehicle, " and that there are no allegations in the complaint that the defendant owned or operated any vehicle involved in the plaintiff's claim. The defendant argues that in hand or abode service was required pursuant to General Statutes § § 52-54 and 52-57. Conversely, the plaintiff argues that the court has personal jurisdiction over the defendant because defendant received actual notice of the current lawsuit, as evidenced by the fact that the defendant signed for the receipt of the summons and complaint and because this is the second lawsuit arising out of the same events. In the alternative, the plaintiff, in her motion to amend civil process, argues that § 52-72 is a statute that is remedial in nature and allows for re-service on the defendant in the particular matter. In response, the defendant argues that § 52-72 is inapplicable.
Section 52-63, entitled: " Service upon motor vehicle operator or owner not found at his recorded address, " reads in relevant part: " (a) Any operator or owner of a motor vehicle at the time of issuance of his license or registration shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action against him on account of any claim for damages resulting from his alleged negligence or the alleged negligence of his servant or agent in the operation of any motor vehicle in this state may be served upon the commissioner as provided in this section and shall have the same validity as if served upon the owner or operator personally, even though the person sought to be served has left the state prior to commencement of the action or his present whereabouts is unknown." (Emphasis added.)
Section 52-54 requires that: " The service of a writ of summons shall be made by the officer reading it and the complaint accompanying it in the hearing of the defendant or by leaving an attested copy thereof with him or at his usual place of abode. When service is made by leaving an attested copy at the defendant's usual place of abode, the officer making service shall note in his return the address at which such attested copy was left." Further, § 52-57 provides in relevant part: (a) 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." (Emphasis added.)
Section 52-72, entitled: " Amendment of Process, " reads in relevant part: " (a) Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective."
As a threshold matter, this court finds that service on the defendant pursuant to § 52-63 was improper, as the allegations against the defendant do not arise from any alleged negligence in the operation of a motor vehicle. As such, the court must determine whether the plaintiff's actual notice of the suit cures the defect in process. Alternatively, the court will consider whether § 52-72 allows the plaintiff to amend the method in which the defendant is served.
" Proper service of process is not some mere technicality. Proper service of process gives a court power to render a judgment which will satisfy due process under the l4th amendment of the federal constitution and equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the full faith and credit clause of the federal constitution." (Internal quotation marks omitted.) Weihing v. Dodsworth, 100 Conn.App. 29, 33 n.3, 917 A.2d 53 (2007). However, the plaintiff argues that, " [s]ection 52-57(a), authorizing abode service, should be construed liberally in cases in which the defendant received actual notice." Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 861-62, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007); see also Plonski v. Halloran, 36 Conn.Supp. 335, 420 A.2d 117 (1980).
This court finds that the cases cited by the plaintiff in her memorandum in opposition are distinguishable from the instant matter. In both Perrone and Plonski there was an attempt at abode service. The critical analysis of both cases surrounded whether the attempts at abode service were sufficient. Such is not the case in the present matter. Here, the only attempt at service was made pursuant through § 52-63, a method for serving process reserved for cases involving the operation of a motor vehicle. The defendant's knowledge of the prior action and her signing the receipt of summons are irrelevant because statutory requirements provide that in hand or abode service is required. No attempt at proper service under the statutory requirements was made. For such reasons, the court finds that the defendant was improperly served.
In Perrone, the court found sufficient abode service when the requisite documents were affixed to the main entryway of the defendant's home because the front door was inaccessible. Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 852. In Plonski, the court held that there was sufficient abode service when a California resident was served at his hotel while temporarily in Connecticut on business. Plonski v. Halloran, supra, 36 Conn.Supp. 335.
See Morgan v. Hartford Hospital, supra, 301 Conn. 400 (" when a particular method of serving process is set forth by statute, that method must be followed"); Peterson v. Torrington Tax Collector, Superior Court, judicial district of Litchfield, Docket No. CV-15-5007614-S, (May 22, 2015, Danaher, J.) (" [a]ctual notice, however cannot cure a defect in service of process. [T]hough a court may be tempted to exercise its jurisdiction over any person who has received actual notice of a pending lawsuit, to do so would plainly violate the lawful restrictions the legislature has placed on its jurisdiction" [internal quotation marks omitted]).
The plaintiff contends that § 52-72 allows her to amend process and re-serve the defendant. She argues that, " [a]s a remedial statute, § 52-72 must be liberally construed in favor of those whom the legislature intended to benefit . . . [And that] statutes such as § 52-72 were intended to take the sharp edges off the common law." Concept Associates, Ltd. v. Board of Tax Review of the Town of Guilford, 229 Conn. 618, 623, 642 A.2d 1186 (1994). Our Supreme Court has recognized that § 52-72 was enacted to cure technical defects in civil process; however, it is not intended to cure substantive defects in civil process. See New Eng. Rd., Inc. v. Planning & Zoning Comm'n of Clinton, 308 Conn. 180, 189, 191-92, 61 A.3d 505 (2013). Therefore, the deciding factor in the instant matter is whether service on the defendant pursuant to § 52-63 was a technical or substantive defect.
At short calendar, the plaintiff's counsel argued that the issue with service of process was not a substantive issue and instead should be viewed as a technical issue, bringing it within the realm of § 52-72. To the contrary, the defendant's counsel argued that the issue was not technical as the defendant was served under the wrong statute.
Service under the improper statute is a substantive defect. The plaintiff attempts to analogize the instant matter to DaDonna v. Kaufman, Superior Court, judicial district of New Haven, Docket No. CV-04-402533, (December 21, 2005, Pittman, J.), where a motion to amend civil process was granted, pursuant to § 52-72, when the plaintiff attempted to serve the defendant through in hand or abode service, but there was uncertainty over the defendant's usual place of abode. In DaDonnna, service under the proper statute was attempted. In the instant matter, no such attempt was made, and the defect is more akin to that in Elias v. Stamford, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-4016758-S, (March 18, 2010, Brazzel-Massaro, J.). In Elias, the court dealt with a service of process issue where the plaintiff failed to serve the town clerk, as required by statute. The plaintiff sought to amend service of the complaint pursuant to § 52-72. The court stated, " each of the cases cited by the plaintiff involve technical defects that can be corrected, unlike the instant defect of lack of personal jurisdiction because of absolutely no service. A review of the legal authority . . . does not support the plaintiff's position that she can amend by now serving the complaint." Id. The court noted that in each of the situations where a technical defect was found, service under § 52-57(a) had been attempted, but it was a technical defect that had made process improper. There was no technical defect when service had not been attempted, instead the defect was substantive. In the instant matter, although some method of service was attempted, it was improper and amounts to a lack of personal jurisdiction over the defendant. The improper service is a substantive defect that cannot be cured pursuant to § 52-72.
Courts have also found technical defects and applied § 52-72 when process was made returnable more than two months from the date that process was served and when a return date was sought to be amended to reflect a Tuesday instead of a Monday. See Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 309-10, 763 A.2d 1055 (2001); Haigh v. Haigh, 50 Conn.App. 456, 464-65, 717 A.2d 837 (1998).
CONCLUSION
Therefore, the motion to amend civil process is denied and the motion to dismiss for lack of personal jurisdiction is granted.