Opinion
No. CV 10 5029094
February 23, 2010
MEMORANDUM OF DECISION
The defendant moves to dismiss this action on the grounds that: (1) the court lacks personal jurisdiction over the defendants due to insufficiency of process and insufficient service of process for the failure to file a complaint and use form JD-CV-1 and (2) the court lacks subject matter jurisdiction because the plaintiff is without standing. The court grants the defendants' motion to dismiss.
On December 11, 2009, the plaintiff, Richard Fenyes, filed an application for an ex parte temporary injunction, pursuant to General Statutes § 52-473, against the defendants, James Fracker and James Fracker Construction, LLC. The application seeks to prevent the defendants from constructing a dwelling, including any further work, construction or excavation activity in connection with the dwelling, on Lot 5 at 622 Booth Hill Road in Trumbull, Connecticut.
Section 52-473 provides in relevant part: "(a) An injunction may be granted immediately, if the circumstances of the case demand it, or the court or judge may cause immediate notice of the application to be given to the adverse party, that he may show cause why the injunction should not be granted.
"(b) No temporary injunction may be granted without notice to the adverse party unless it clearly appears from the specific facts shown by affidavit or by verified complaint that irreparable loss or damage will result to the plaintiff before the matter can be heard on notice. It shall be sufficient, on such application for a temporary injunction, to present to the court or judge the original complaint containing the demand for an injunction, duly verified, without further complaint, application or motion in writing."
The plaintiff also filed an affidavit in support of the application, a summons signed by a clerk of the court and an order to show cause.
The plaintiff alleges the following facts in the application. The plaintiff's mother, Mary Fenyes, entered into "an agreement to sell 4.7 prime acres (upon approval of a 4-lot conventional subdivision) of her total 21 acre parcel [of land in Trumbull] to Fracker only if [she] agreed to allow Fracker's lender, FCCC Holding Company, LLC to mortgage her entire 21 acre parcel in order to borrow the funds to pay [Mary Fenyes] to satisfy her nursing home debt." Between 2003 and 2004, Fracker completed several sketches that divided the 4.7-acre parcel lot into subdivisions. Most of the sketches, however, did not comply with the Trumbull regulatory authorities. On March 8, 2004, Fenyes filed a complaint for specific performance against Mary Fenyes for execution of the contract. On July 24, 2006, "an unnecessary and forced conservatorship on [Mary Fenyes] was ordered and decreed" by the court. The "root cause of the conservatorship [was] Fracker's failure to comply with the terms of the contract." Further, the court issued a decree of specific performance of the contract and "ordered the 4.7 acre parcel conveyed to Fracker." The decree was not appealed by the conservator. Nonetheless, "[t]he conservatorship was terminated on December 24, 2008." After the closing of the sale of land to Fracker, Mary Fenyes was forced to repay the principal and interest on the loan from FCCC Holding in the amount of $866,915.23. As a result of the transaction, "Fracker has been unjustly enriched by deliberately refusing to pay [Mary Fenyes] for her land and her graciousness in accommodating him by putting her land up as collateral to enable him to get a loan just to have him abuse this generosity . . ." In addition to the temporary injunction, the plaintiff seeks $866,915.21, plus interest and a permanent injunction barring the defendants from continuing any further construction and erecting a dwelling on the Trumbull property.
The defendant moves to dismiss this action on the grounds that there was improper process and improper service of process. Additionally, in argument before the court, the defendants asserted that the plaintiff lacks standing in this matter. The plaintiff filed a memorandum in opposition to the motion on January 7, 2010.
"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. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." Practice Book § 10-31(a). "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "A defect in process . . . such as an improperly executed writ, implicates personal jurisdiction . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." (Citation omitted; internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415-16, 885 A.2d 768 (2005), aff'd, 112 Conn.App. 1, 961 A.2d 1012 (2009).
The defendants move in their motion to dismiss on the grounds that the court lacks personal jurisdiction due to insufficiency of process and insufficient service of process. Specifically, in their memorandum of law, the defendants argue that there was improper service because the plaintiff did not attach a complaint to the writ of summons, commencing a civil action, as required by General Statutes § 52-45a. Further, the defendants argue that service of process was insufficient because the application for ex parte temporary injunction is not in compliance with Form JD-CV-1, as set out in Practice Book § 8-1. Even "if Fracker received notice of the hearing to show cause," the defendants maintain that "[a]bsent a proper summons the court lacks jurisdiction over Fracker and should dismiss [the] plaintiff's request for a temporary injunction."
The plaintiff counters that it was not his intention to file a lawsuit and, therefore, the plaintiff chose to file a temporary injunction, believing he did not need to provide a writ of summons, Form JD-CV-1 or complaint. The plaintiff also argues that he previously filed a temporary injunction in this court without additional documentation and "the grounds for [the] [m]otion to [d]ismiss due to insufficiency of process were never raised." The plaintiff further argues that (1) pursuant to 52-45a, court form JD-CV-1 is not mentioned and the word "attachment can very well mean the summons [he] filed"; (2) the rules of practice § 8-1(b) do not require form JD-CV-1 to be used in probate appeals, "of which [he has] five pending in this Court [and] [has] never completed or used court form JD-CV-1 with these appeals or anywhere else"; (3) § 10-31 of the rules of practice does not specifically use the words "lack of personal jurisdiction due to insufficient process" as a ground for granting a motion to dismiss; (4) the motion to dismiss must be denied because "each state has personal jurisdiction over its residents" of which the plaintiff is one and "he does not fall with any of the provisions listed in [General Statutes] section 52-59b"; (5) a "Temporary Injunction does not fall under the definition of a Prejudgment Remedy"; and (6) "there is a remedy available to [the plaintiff] in the event of an adverse decision."
Section 52-45a, governing process, provides: "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint. 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." Practice Book § 8-1(a), describing service of process, provides in relevant part: "Mesne process 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 . . . shall be signed by a commissioner of the Superior Court . . . [T]he writ of summons shall be on a form substantially in compliance with . . . Form JD-CV-1 . . ." "A complaint . . . must accompany a writ of summons or attachment. The writ [of summons] is void if there is no complaint." (Internal quotation marks omitted.) Galvin v. Birch, 97 Conn. 399, 401, 116 A. 908 (1922). "[T]he use of the word `shall' by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive." (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 240, 558 A.2d 986 (1989); see Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984) ("The rules of statutory construction apply with equal force to Practice Book rules").
"[A] writ of summons is a statutory prerequisite to the commencement of a civil action . . . [I]t is an essential element to the validity of the jurisdiction of the court." Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991). "In ordinary usage of the term, [a summons is the] original process upon a proper service of which an action is commenced and the defendant therein named brought within the jurisdiction of the court . . . Ballentine's Law Dictionary (3d Ed.). A summons is . . . a command to a duly authorized officer to summon the [defendant] . . . to appear in court on a specific day to answer the [complaint]. . ." (Citations omitted; internal quotation marks omitted.) Id., 524-45. "[T]he writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . ." Id., 526.
"A complaint . . . must accompany a writ of summons or attachment. The writ [of summons] is void if there is no complaint." (Internal quotation marks omitted.) Galvin v. Birch, 97 Conn. 399, 401, 116 A. 908 (1922). "Due process notice is accomplished by requiring that the complaint — which relates the legal claim and the factual basis for it — be part of the [service of] process." Coburn v. Quaratella, Superior Court, judicial district of New London, Docket No. 563074 (January 27, 2003, Corradino, J.) 34 Conn. L. Rptr. 32, 33) (due process concerns are raised where a party is served with a summons and no complaint).
The plaintiff commenced the action with a summons, an application for a temporary injunction, an affidavit in support of the application and an order to show cause. The summons included: the court to which it was returnable, the return date, the names of the parties, the date and place for the filing of an appearance and a signature of the clerk of the court: It substantially complied with the Practice Book and statute. Notwithstanding substantial compliance of the summons, the inclusion of a complaint is mandatory due to the use of the word shall in the rules of practice and the statutes. Failure to do so constitutes insufficient process and insufficient service of process, valid grounds for dismissal under Practice Book § 10-31. Accordingly, the motion to dismiss for lack of personal jurisdiction is granted.
The present case does not fall within any of the exceptions for filing a JD-CV-1 Form. Practice Book § 8-1 provides in relevant part, that exceptions to filing a JD-CV-1 Form include: "(1) Applications for change of name; (2) Proceedings pertaining to arbitration; (3) Probate appeals; (4) Administrative appeals; (5) Verified petitions for paternity; (6) Verified petitions for support orders; (7) Any actions or proceedings in which an attachment, garnishment or replevy is sought; (8) Applications for custody; (9) Applications for visitation."
Additionally, at short calendar, the defendants argued that the plaintiff lacks standing. "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31(a)." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). "Standing requires no more than a colorable claim of injury; a plaintiff ordinarily establishes his standing by allegations of injury. Similarly, standing exists to attempt to vindicate `arguably' protected interests." (Emphasis in original.) Maloney v. Pac, 183 Conn. 313, 321 n. 6, 439 A.2d 349 (1981).
In his memorandum of law, the plaintiff argues that he has "filed this application for [a] temporary injunction seeking to collect a monetary obligation from the defendants that has been long overdue and owed to [his] mother, Mary Fenyes for her land." The plaintiff admits that he brought this action on behalf of his mother, but fails to describe any type of representative capacity that he is serving on her behalf. The plaintiff neither describes any injury that he has suffered or may suffer nor any protectable interest he has in the Trumbull property. Ultimately, the plaintiff fails to allege any colorable claim of injury to himself. Therefore, the plaintiff, without any recognizable interest, is without standing.
Accordingly, the court grants the defendants' motion to dismiss.