Opinion
No. HHD CV-09 5030972S
September 23, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMSISS
This action arises out of the plaintiff's installation of a stone walkway at the defendants' home. The plaintiffs allege the following facts. In the summer of 2006, the defendants, Michael and Rebecca Georgetti, entered into an oral agreement with the plaintiff, Rock Landscaping, LLC, under which the plaintiff agreed to install and the defendants agreed to pay for a stone walkway consisting of stone pavers and a granite Belgian rock border. Although the subject of a written contract came up during negotiations, no written contract was entered into at the defendants' request. At that time, the defendants had knowledge that the Connecticut Home Improvement Act, General Statutes § 20-418 et seq., generally precludes a contractor from recovering for a homeowner's breach of an oral agreement. Accordingly, at the time of the oral agreement, the defendants had no intent to pay the plaintiff for its services. On August 2, 2006, the plaintiff completed the installation of the stone walkway and charged the defendants $10,142.40 for its services. When the plaintiff presented the defendants with a bill, Michael Georgetti indicated that he had left his checkbook at the office but that he would mail payment. The defendants never mailed payment and adamantly refused to pay for the labor and materials received from the plaintiff.
The plaintiff commenced this action by service of process on June 19, 2009. In its complaint, the plaintiff pleads the following counts: (1) breach of contract; (2) unjust enrichment; (3) quantum meruit; (4) conversion; (5) statutory theft, pursuant to General Statutes § 52-564; and (6) replevin, pursuant to General Statutes § 52-515. On August 13, 2009, the defendants filed a Motion to Dismiss on grounds that the plaintiff's failure to comply with General Statutes § 52-518 constitutes insufficiency of process and that the plaintiff's failure to comply with General Statutes §§ 52-518 and 52-522 deprives this Court of subject matter jurisdiction. The defendants filed a memorandum of law in support of their Motion. On August 20, 2009, the plaintiff filed a memorandum in opposition to the Motion. The matter was heard on the short calendar on September 8, 2009.
I. STANDARD OF REVIEW
"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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "The grounds which may be asserted in [a motion to dismiss include]: (1) lack of jurisdiction over the subject matter . . . [and] (4) insufficiency of process . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "When a [trial] 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.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
II. CLAIM OF INSUFFICIENCY OF PROCESS
The defendants first argue that the plaintiff's failure to comply with General Statutes § 52-518 constitutes insufficiency of process. The plaintiff argues that the defendants have waived any claims relating to insufficiency of process because they did not file their motion to dismiss within thirty days of the filing of an appearance as required by Practice Book § 10-32.
"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, 895 A.2d 768 (2005). Practice Book § 10-32 provides: "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 in Sections 10-6 and 10-7 and within the time provided by Section 10-30." 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 of an appearance." "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." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
In the present case, the defendants filed an appearance on July 13, 2009. They then filed the Motion to Dismiss on August 13, 2009, thirty-one days after the appearance. In so doing, the defendants submitted to the jurisdiction of the Court and waived any right to claim insufficiency of process.
III. CLAIM OF LACK OF SUBJECT MATTER JURISDICTION A. General Statutes § 52-518
The defendants next argue that the plaintiff's alleged failure to comply with General Statutes § 52-518 deprives this Court of subject matter jurisdiction. Specifically, the defendants contend that the plaintiff has failed to file an affidavit and recognizance, as assertedly required under Section 52-518 in all replevin actions. The plaintiff did not address this point in its brief. At short calendar, however, the plaintiff argued that the failure to file an affidavit and/or to post a bond does not implicate the Court's subject matter jurisdiction.
Replevin actions are governed by General Statutes § 52-515 et seq. In order to prevail on the merits of such an action, the plaintiff must plead and prove that: "(1) the [items in question] are goods or chattels within the meaning of § 52-515; (2) [the plaintiff] has a property interest in the [items]; (3) [the plaintiff] has a right to immediate possession of the [items]; and (4) the defendant has wrongfully detained the [items]." (Internal quotation marks omitted.) Cornelio v. Stamford Hospital, 246 Conn. 45, 49, 717 A.2d 140 (1998).
An action for replevin may be commenced in one of two ways — by serving the defendant either with a writ of summons or with a writ of attachment. Compare § 52-516(a), with Practice Book § 8-1. When the action is commenced by a writ of summons, the plaintiff must serve the defendant with a complaint duly pleading his claim or cause of action for replevin, "describing the parties, the court to which it is returnable and the time and place of appearance[,]" must cause copies of the original writ of summons and complaint to be returned to court and must thereafter prosecute the action like any other civil action. When, by contrast, the action is commenced by a writ of attachment, whereby the plaintiff seeks to secure his claimed interest in the subject property by taking immediate possession of it, before final judgment, under a writ or order of replevin, the plaintiff must also comply with certain additional pleading and service requirements.
The first such requirements are set forth in General Statutes § 52-516(b), which generally provides that any plaintiff who seeks a prejudgment remedy of replevin upon the commencement of his action for replevin must comply with the general requirements for all prejudgment remedies set forth in General Statutes § 52-278a to 52-278f, inclusive. See Shawmut Bank, N.A. v. Valley Farms, 222 Conn. 361, 371, 610 A.2d 652 ("[t]hus, in order to obtain an order of replevin, the plaintiff was required to satisfy not only the requirements of the replevin statutes; General Statutes § 52-515 et seq.; but the requirements of due process as expressed in §§ 52-278a through 52-278h") cert. dismissed, 505 U.S. 1247, 113 S.Ct. 28, 120 L.Ed.2d 952 (1992). The other such requirements are set forth in Section 52-518 — the statute here at issue — which provides, in relevant part, that "[a] writ of replevin shall not be issued: (1) Until the plaintiff . . . subscribes an affidavit annexed to the writ stating the true and just value of the goods which it is desired to replevy, and that the affiant believes that the plaintiff is entitled to the immediate possession of the goods, and (2) until some person, known to the authority signing the writ to be of sufficient responsibility, has entered into a recognizance before him, with at least one sufficient surety, in a sum at least double the sworn value of the property, conditioned (A) that the plaintiff shall prosecute his action to effect, (B) for the payment of any judgment that may be recovered by the defendant in the action, and (C) for the return of property to the defendant, and payment to the defendant of all damages sustained by the replevy of the property if the plaintiff fails to establish his right to its possession."
The plain language of Section 52-518 makes it clear that the affidavit and bond requirements set forth therein only apply to the writ of replevin, when applied for as a prejudgment remedy, not to the underlying claim for replevin. The statute thus conditions the recognizance, inter alia, on "the return of the property to the defendant, and payment to the defendant of all damages sustained by the replevy of the property if the plaintiff fails to establish his right to its possession." (Emphasis added.) General Statutes § 52-518(2)(C). That, of course, can only occur when a plaintiff who has taken possession of property prior to judgment fails to establish his claim on the merits at trial. Manifestly, it does not apply to a plaintiff who has not sought a prejudgment remedy of replevin, for he never can or will take possession of the subject property until his entitlement to it is finally adjudicated at trial. The manifest purpose of the bond requirement is thus to protect the interests of the defendant in the return of property replevied prior to judgment if the plaintiff fails to prove his claim at trial.
Indeed, all of the cases involving the sufficiency of requirements under § 52-518 involve a prejudgment remedy for replevin. See, e.g., Shawmut Bank, N.A. v. Valley Farms, supra, 222 Conn. 362 (discussing § 52-518 in the context of a prejudgment remedy); Weil v. Macri, Superior Court, judicial district of New Haven, Docket No. CV 020459617 (March 6, 2002, Hadden, J.T.R.) (same); Corcoran Transportation, Inc. v. Schmidheini, Superior Court, judicial district of Waterbury, Docket No. 0121224 (March 1, 1995, Sullivan, J.) ( 13 Conn. L. Rptr. 601) (same).
The court in Walko v. Walko, 64 Conn. 74, 77, 29 A. 243 (1894), explained the purpose of the bond requirement by stating: "The plaintiff in replevin is furnished with a process which requires the officer to take any specified article of property from the defendant, notwithstanding he has it in possession and may be the rightful owner. To prevent the writ from working any wrong, the statute exacts, before its issue, the execution of a joint and several bond by the plaintiff and a sufficient surety, in favor of the defendant, conditioned, among other things, for the payment of any judgment for damages and costs that he may recover. This security virtually takes the place of the goods replevied . . ." (Emphasis added.)
Lastly, General Statutes § 52-523, the statutory section describing the requirements for a complaint in a replevin action makes no mention of the affidavit and bond requirements. From this, it can be inferred that a complaint that satisfies Section 52-523 is sufficient on its face to bring a cause of action for replevin.
Section 52-523 provides: "If the complaint in an action of replevin contains a sufficient statement of the plaintiff's title and right of possession, a general allegation that the defendant wrongfully took the goods shall be sufficient without setting forth the facts showing that the taking was wrongful. If the taking of the goods is not complained of, but the action is founded upon their wrongful detention, the complaint shall set forth the facts showing that the detention was wrongful."
In the present case, the plaintiff has not annexed an affidavit to its complaint or posted a bond. The plaintiff's complaint makes it clear, however, that it is bringing a substantive claim for replevin without seeking a prejudgment remedy of replevin. As such, neither a bond nor an affidavit was required to bring this action.
Even if the plaintiff were required to post a bond and/or to append an affidavit to its complaint in order to maintain an action for replevin, which it is not, its failure to do so would not deprive this Court of subject matter jurisdiction. A plaintiff's failure to affix an affidavit to the complaint or to post a bond is an amendable defect. See Shawmut Bank, N.A. v. Valley Farms, supra, 222 Conn. 364 ("[T]he court ruled that the plaintiff's application was defective because it lacked an affidavit of the actual value of the property to be replevied and a proper bond . . . The court instructed the plaintiff to amend its application in order to remedy these defects." (Citation omitted.)); Corcoran Transportation, Inc. v. Schmidheini, Superior Court, judicial district of Waterbury, Docket No. 0121224 (March 1, 1995, Sullivan, J.) ( 13 Conn. L. Rptr. 601) ("The undersigned granted the plaintiff's application for a prejudgment remedy permitting the plaintiff to recover the truck by a writ of replevin. The court also ordered the plaintiff to file a bond with surety pursuant to General Statute § 52-518 for twice the value of the replevied property.").
Both Shawmut Bank, N.A. v. Valley Farms, supra, 222 Conn. 361, and Corcoran Transportation Inc. v. Schmidheini, 13 Conn. L. Rptr. 601, involved the plaintiff's application for a prejudgment remedy. The statutory requirements are particularly important where the plaintiff seeks a prejudgment remedy because "prejudgment remedies are in derogation of the common law and, therefore . . . prejudgment remedy statutes must be strictly construed . . . Feldmann v. Sebastian, 261 Conn. 721, 726, 805 A.2d 713 (2002). Thus, the provisions and requirements contained in the prejudgment remedy statutes "may not be disregarded with impunity, nor waived or changed by courts." (Internal quotation marks omitted.) Id., 725.
Additionally, the Court's power to order a plaintiff to post additional bond, where appropriate, indicates that the Court does not lose subject matter jurisdiction over a case merely because a plaintiff posts an insufficient bond. General Statutes § 52-521(b) gives a defendant who is unsatisfied with the plaintiff's bond a procedure by which to bring the insufficiency to the Court's attention. The Court then has the power to decide whether such bond is insufficient, and, if so, to "order a new or further bond." General Statutes § 52-521(b). Furthermore, § 52-521(d) explains that the Court may decide the sufficiency of the bond sua sponte. Specifically, § 52-521(d) provides in relevant part: "If it appears to the court before which an action of replevin is pending that the replevin bond attached to the writ is insufficient, the court may, at its discretion, order a new or further replevin bond to be given by the plaintiff, conditioned like the recognizance taken on issuing the writ." Therefore, the defects complained of do not implicate the Court's subject matter jurisdiction. Accord, Nichols v. Standish, 48 Conn. 321 (1880) (holding that failure to comply with the statutory requirements here at issue does not make the proceeding void, but only voidable at the instance of the defendant).
Section 52-521(b) provides: "If the defendant is not satisfied with the recognizance, he may, at any time before the return day of the writ, cite the plaintiff or his attorney, or the officer serving the writ, if the property still remains in his custody, to appear at once before a judge of the superior court where the replevin was effected, to respond to a motion for a new bond. The judge may hear the motion and, at his discretion, order a new or further bond, conditioned like the recognizance taken on issuing the writ, signed by the obligors, and delivered to the defendant, by whom it shall be transmitted to the court to which the writ was made returnable. If the order is made while the property replevied remains in the custody of the officer, he shall not deliver the property to the plaintiff until the bond is given."
B. General Statutes § 52-522
The defendants next argue that the complaint should be dismissed because the plaintiff has improperly combined a cause of action for replevin with other causes of action, in alleged violation of General Statutes § 52-522. The defendants contend that the plaintiff's joinder of his replevin claim with such other causes of action deprives this Court of subject matter jurisdiction.
The plaintiff argues that misjoinder is properly raised by a motion to strike, not by a motion to dismiss, and thus that the Court's subject matter jurisdiction is not implicated by the alleged misjoinder.
Section 52-522 provides: "In an action of replevin, no cause of action, except of replevin or for a conversion of the goods described in the writ of replevin, may be stated. The pleadings in such action shall conform to the requirements of pleadings in civil actions so far as such requirements may be consistent with the substantive rights secured by this chapter." That section does not provide a remedy for a complaint that contains replevin and another cause of action. Practice Book § 10-39(a), however, provides in relevant part: "Whenever any party wishes to contest . . . (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts . . . that party may do so by filing a motion to strike the contested pleading or part thereof."
Pursuant to Practice Book § 10-39(a), a motion to strike, not a motion to dismiss, is the proper procedural vehicle by which to attack the improper joinder of two or more causes of action in violation of Section 52-522. Cf. Leasing Technologies InternationaL Inc. v. Uniscribe Professional Services, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0181875 (November 30, 2001, Lewis, J.) ( 30 Conn. L. Rptr. 743) (granting motion to strike breach of contract count where both breach of contract and replevin in violation of § 52-522). As explained in Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007), "[t]here is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) A motion to strike would allow the plaintiff to choose to proceed either on its replevin and conversion claims or on its other pleaded causes of action. There is no authority to suggest that the misjoinder of a replevin claim with another claim or cause of action implicates the Court's subject matter jurisdiction over any such claim.
IV. CONCLUSION AND ORDER
For all of the foregoing reasons, the defendant's Motion for Dismiss must be DENIED.
Accordingly, IT IS SO ORDERED.