Opinion
No. FST CV 09 5010174 S
March 1, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS #120
FACTS AND PROCEDURAL BACKGROUND
The plaintiff filed a writ, summons and complaint dated December 29, 2008 against the defendants, Aqua Pool Patio, Inc., Ronald Giannamore and Michael Giannamore. The complaint contains ten separate counts. On June 18, 2009, the defendants filed an apportionment complaint naming Artistic Outdoors, LLC and Chin Lin as apportionment defendants in this action. On September 19, 2009 an appearance was filed for the apportionment defendants.
Presently before the court is a February 2, 2010 motion to dismiss the apportionment complaint dated June 3, 2009, of the apportionment plaintiffs, Aqua Pool Patio, Inc., Ronald Giannamore and Michael Giannamore, brought by the apportionment defendants, Artistic Outdoors, LLC and Ching Lin. In their motion to dismiss, the apportionment defendants assert that the court lacks subject matter jurisdiction over this case because: (1) the apportionment complaint fails to include a return date and (2) the apportionment complaint was never returned to the court. The parties agree that the apportionment complaint does not have a return date, although a return date of July 7, 2009, is provided on the summons. There is a dispute, however, regarding whether the apportionment complaint was actually returned to the court. In their memorandum of law in opposition, the apportionment plaintiffs argue that the apportionment complaint was returned to the court on June 18, 2009, which is demonstrated by a stamp from the clerk's office on the apportionment complaint. The motion to dismiss involves personal jurisdiction and not subject matter jurisdiction.
The apportionment plaintiffs have submitted an objection dated February 9, 2010 to the motion to dismiss. The court heard argument regarding the motion and the objection on February 22, 2010.
LEGAL DISCUSSION CT Page 6040
"A motion to dismiss . . . properly attacks 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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 866 A.2d 599 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179 554 A.2d 728 (1989). "The use of the motion to dismiss is ordinarily limited by Practice Book §§ 10-6, 10-7, 10-30 and 10-32, which together require that a motion to dismiss be the first pleading filed in response to the complaint and that it be filed within thirty days of the filing of an appearance. If the motion to dismiss is not filed according to those requirements, then any challenges on the grounds of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process are deemed waived." Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).The apportionment defendants' first argument is that the court lacks subject matter jurisdiction because the apportionment complaint does not have a return date. The apportionment defendants rely upon one Superior Court judge who has determined that such a defect renders the court without subject jurisdiction to support their position. Sec Data Com Results, Inc. v. Castro, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV 93 0704134 (March 21, 1996, Hennessey, J.) ( 16 Conn. L Rptr. 273). Dicta from the Connecticut Supreme Court, however, strongly suggests otherwise. In Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 625-26, n. 8, 642 A.2d 1186 (1994), our Supreme Court stated that "this court [has] held that the use of an improper return date did not affect the jurisdiction of a trial court hearing an appeal from an inferior tribunal. In addition . . . we [have] held that an improperly executed writ or citation affects the personal jurisdiction, rather than subject matter jurisdiction, of the trial court and therefore may be waived as a ground for dismissal." (Citations omitted.) Id.; see also Brian's Floor Covering Supplies, LLC v. Spring Meadow Elderly Apartment, Superior Court, judicial district of Fairfield, Docket No. CV 375810 (January 2, 2003, Levin, J.) ( 33 Conn. L. Rptr. 615) (holding that a failure to list a return date on the summons implicates personal, rather than subject matter, jurisdiction).
The conclusion that a plaintiff's failure to provide a return date on the complaint deprives the court of personal jurisdiction makes sense because "[a] defect in process . . . implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415, 885 A.2d 768 (2005). Furthermore, "[a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citation omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). Even if the apportionment plaintiffs failed to provide a return date on their complaint, this defect would not deprive the court of the ability to hear the type of case that has been brought, it would only bear on the court's jurisdiction over the apportionment defendant. Therefore, the omission of the return date from the complaint implicates personal, as opposed to subject matter jurisdiction.
Next, the apportionment defendants contend that this action should be dismissed because it does not appear that the writ or summons and complaint were returned to the court. General Statutes § 52-46a provides: "Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day."
Our Supreme Court has determined that "the requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement." Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998). "The use of the work `voidable' implies to this court that an objection to jurisdiction under the applicable statute is waived if not timely filed. By necessity, then [§]52-46a must affect only jurisdiction over the person since personal jurisdiction may be created through consent or waiver . . . If the failure to return process to the court in a timely manner implicated the court's subject matter jurisdiction, which cannot be waived . . . then the proceedings of necessity would be void, rather than merely voidable." (Citation omitted; internal quotation marks omitted.) Stephenson v. Blue Cross and Blue Shield of Connecticut, Inc., Superior Court, judicial district of Danbury, Docket No. 306045 (June 8, 1992, Moraghan, J.); see also Green v. Law, Superior Court, judicial district of New Britain, Docket No. 08 4017132 (December 12, 2008, Cohn, J.) ( 46 Conn. L. Rptr. 804, 805) ("the court must decide whether the failure to comply with § 52-46a raises the issue of subject matter jurisdiction . . . [T]he cases indicate that such a failure is one of personal, not subject matter jurisdiction"); see also Rosario v. Hasak, 50 Conn.App. 632, 639-40 n. 8, 718 A.2d 505 (1998) (noting, without disapproval, a trial court's determination that a violation of § 52-46a implicates personal, as opposed to subject matter, jurisdiction). Therefore, failure to adhere to the requirements of § 52-46a renders the court without personal jurisdiction over the apportionment defendants.
Practice Book § 10-30 provides in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing an appearance." As further provided by Practice Book § 10-32: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided by Sections 10-6 and 10-7 and within the time provided by Section 10-30." "The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 . . . Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." (Emphasis in original.) Pitchell v. Hartford, 247, Conn. 422, 433, 722 A.2d 797 (1999).
In the present case, counsel for the apportionment defendants filed their appearance on September 19, 2009. The motion to dismiss, however, was not filed by the apportionment defendants until February 2, 2010, which is well outside the thirty-day time frame provided for in Practice Book § 10-30. Accordingly, the apportionment defendants have consented to the court's personal jurisdiction over them and the motion to dismiss is denied because of the failure to file it timely.