Opinion
No. CV 05-4004134-S
January 31, 2006
RULING ON MOTION TO DISMISS
The defendant zoning commission of the Borough of Newtown moves to dismiss this administrative appeal on the principal ground that plaintiff R.C. Equity Group, LLC cannot show that insufficient service of process in a prior, essentially identical appeal was due to the "default or neglect of the officer to whom [the process] was committed" within the meaning of § 8-8(q) of the General Statutes. For the reasons stated below, the court grants the motion to dismiss.
I
The pertinent facts are undisputed. The plaintiff commenced the prior zoning appeal with a JD-CV-1 form entitled "Summons-Civil." The standard language of the form stated: "TO: Any proper officer; BY AUTHORITY OF THE STATE OF CONNECTICUT, you are hereby commanded to make due and legal service of this Summons and attached Complaint." In the space for identifying the defendants, the plaintiff specified: Zoning Commission of the Borough of the Newtown, c/o Linda Shepard, Chairman, 1 Glover Avenue, Newtown, CT 06470." There was no mention of the municipal clerk on the form.
A state marshal served the complaint and summons on the chair of the zoning commission on March 24, 2005. The defendant moved to dismiss on the ground that "the clerk of the municipality was neither cited nor served with a copy of [the] appeal as required by § 8-8(b) of the General Statutes." (Pleading # 102, R.C. Equity Group, LLC v. Borough of Newtown Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 05-4002613S). See note 1 infra. On August 22, 2005, the court, Downey J., summarily granted the motion to dismiss.
The plaintiff began the present appeal on September 2, 2005 by serving two copies on the borough clerk in accordance with General Statutes § 52-57(b)(5). The complaint alleges that the appeal is identical to the previous appeal but is being brought pursuant to the savings provisions of General Statutes § 8-8(q). (Complaint, ¶ 20.) The defendant moves to dismiss primarily on the ground that § 8-8(q) does not apply. The plaintiff, in response, attaches the affidavit of the marshal who served the papers in the prior appeal in March 2005. The marshal avers that he was familiar with the rule that, after October 1, 2004, two copies of the process were to be served on the borough clerk, and that he had frequently served process for the plaintiff's attorney before, but that he mistakenly served the commission chair instead.
General Statutes § 8-8(b) provides that "[t]he appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section . . ." Because this appeal was taken in 2005, § 8-8(f)(2) applies. This section provides in pertinent part: "[for any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." Section 52-57(b), in turn, provides: "Process in civil actions against the following-described classes of defendants shall be served as follows: . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
Section 8-8(q) provides:
If any appeal has failed to be heard on its merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed, or the appeal has been otherwise avoided for any matter of form, the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal. The provisions of section 52-592 shall not apply to appeals taken under this section.
II
The pertinent portion of § 8-8(q) provides that "[i]f any appeal has failed to be heard on the merits because of insufficient service or return of the legal process due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . the appellant shall be allowed an additional fifteen days from determination of that defect to properly take the appeal." The plaintiff admits that the failure of the March appeal was not due to "unavoidable accident" because the plaintiff or its attorney could have avoided the problem by specifically informing the marshal to serve the municipal clerk, which they did not do. The plaintiff nonetheless contends that the March appeal failed because of the "default or neglect of the officer to whom it was committed."
The problem could similarly have been avoided if the citation had specifically directed the marshal to serve the clerk. Although the plaintiff's use of a JD-CV-1 form is not fatal; see Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 354-57, 514 A.2d 749 (1986); Practice Book § 8-1(b)(4); the plaintiff's failure to name the municipal clerk in the form does constitute a fatal jurisdictional defect, as held in Simko v. Zoning Board of Appeals, 206 Conn. 374, 376, 383, 538 A.2d 202 (1988). Because the court summarily granted the prior motion to dismiss, it is uncertain whether it relied on the absence of a citation to the clerk as a ground for dismissal. If it did, then § 8-8(q) might not be available at all, as it is not clear that a failure to name the clerk in the citation constitutes "insufficient service or return of the legal process" within the meaning of that provision.
After Simko, the general assembly enacted a savings provision that validated any zoning appeal that was "otherwise valid except that the party taking such appeal failed to name the clerk of the municipality as a party to the appeal in the citation . . ." Public Acts 1988, No. 88-79, § 3(a). However, the act applied only to appeals taken "on or after October 1, 1985 and prior to December 1, 1987 in which a final judgment has not been entered prior to the effective date of this act . . ." Id. Further, the act did not apply when, as here, the clerk did not receive actual service. See Spicer v. Zoning Commission, 212 Conn. 375, 378-80 n. 5, 562 A.2d 21 (1989).
Although the plaintiff served the present appeal within fifteen days of the August 22, 2005 dismissal, the plaintiff filed the appeal on September 12, 2005, which is beyond the fifteen-day period. The defendant does not contend, however, that the plaintiff has taken more than fifteen days to "properly take the appeal" within the meaning of § 8-8(q).
In Kobyluck v. Planning Zoning Commission, 84 Conn.App. 160, 168-69, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004), the Appellate Court held that a sheriff's improper service of a zoning appeal on the town clerk rather than the chairman of the commission, under a prior service statute, represented the "default or neglect" of the sheriff under § 8-8(q). In that case, however, the plaintiff had named the chairman in the citation but had not provided his correct home address. Id., 169. It was thus the obligation of the officer to conduct a sufficient investigation to enable him to locate someone named by the plaintiff in the process.
The present case is much closer to Gadbois v. Planning Commission, 257 Conn. 604, 778 A.2d 896 (2001). In Gadbois, the citation directed the officer to "summon the . . . Commission . . . by leaving with or at the usual place of abode of the chairman or clerk of that Commission a true and attested copy of the complaint and of this citation . . ." (Internal quotation marks omitted.) Id., 606. Our Supreme Court ruled that the failure of the officer to serve the town clerk, which was a fatal jurisdictional defect under the applicable statute, did not constitute negligence or error on the part of the sheriff. Id., 608-09. Although the court did not elaborate, its ruling suggests that the officer was not responsible for failing to serve someone whom the process did not name.
In the present case, as well, the fact that the officer did not serve the municipal clerk is primarily due to the plaintiff's failure to name the clerk in its process. Although the plaintiff had the advantage of using a marshal who was very knowledgeable about the law, when, as here, the plaintiff fails to provide the marshal with the identity of all persons to serve, ultimately the responsibility must lie with the plaintiff, rather than the marshal. It is one thing to expect the marshal to locate someone named in the process, as in Kobyluck. Presumably, a marshal has the investigative skills to call upon for that task. It is quite another to expect a marshal to interpret the law and identify the correct persons to sue. As the Gadbois court implicitly held, that role belongs to the plaintiff and ultimately the plaintiff's attorney, who is trained in the law. Determining who to serve can be a difficult task, involving legal research and statutory construction, as the statutory maze in this case reveals. See note 1 supra. The court will not hold that the responsibility for performing this difficult task falls on a lay marshal rather than the plaintiff and its trained attorney. Accordingly, the court concludes that the defect in service was not due to "default or neglect of the officer to whom it was committed" under § 8-8(q).
Another example of the difficulty a marshal might encounter would arise in the event of service of a suit upon the Connecticut Resources Recovery Authority. Cf. General Statutes §§ 4-160(e); 22a-261(a); 52-64.
The motion to dismiss is granted.
In view of this disposition, it is unnecessary to reach the standing issue and other claims for dismissal raised by the defendant.
It is so ordered.