Opinion
No. CV 05-400 67 04 S
July 1, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
This is an action by the plaintiff, Hale C. Sargent, administrator of the estate of Michael D. Kielty, against the defendant, Capital Airlines and Kathy Leonzi, administrator of the estate of Milton F. Marshall, for the damages, injuries and death of Michael D. Kielty, resulting from the crash of a private plane owned by Capital Airlines and operated by Milton F. Marshall. The plane crash claimed the lives of both men.
Alter filing a proper appearance by counsel, the defendant timely moved this court for an order dismissing the action for the reason that the court lacks the requisite jurisdiction to hear it due to the fact that the JD-CV-1 civil summons form, as promulgated by § 52-45a, et seq., C.G.S., was not signed by plaintiff's attorney before it was served on the defendants by proper officer.
The plaintiff has filed an objection to the motion to dismiss, arguing that although the JD-CV-1 summons form was not signed by the plaintiff's attorney in the box located immediately below the summons portion of the form, he did sign immediately below that in the box marked "Official taking recognizance" and by making that signature, it can be inferred that the attorney was putting his "imprimatur" on the whole document, not merely the recognizance.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773 (2003). "The grounds which may be asserted in [a motion to dismiss] are . . . lack of jurisdiction over the person . . . insufficiency of process . . . and . . . insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985); See Practice Book § 10-31.
The plaintiff further argues that even if the attorney's signature on the recognizance portion of the summons form is lacking, it is incorrect to state that he failed to sign a summons elsewhere in the process. He correctly points out that following the last sentence in the complaint, the attorney added the following language, " OF THIS WRIT with your doings thereon, make due service and return." As the plaintiff points out, that is the traditional way a writ, summons and complaint was executed in the days before the use of the JD-CV-1 form.
In Raynor v. Hickok Realty Corp., 61 Conn.App. 234, the leading case concerning the necessity of a writ's being signed by an attorney, the court cited the case of Hillman v. Greenwich, 217 Conn. 520, in which our Supreme Court stated: "A summons is part of a citation. The citation . . . is a command to a duly authorized officer to summon the [defendant] . . . to appear in court on a specific day to answer the [complaint]. Village Creek Homeowners Assn. v. Public Utilities Commission, [ supra, 148 Conn. 338-39]." Hillman v. Greenwich, supra, 524-25.
The defendant argues that the facts in the instant case are distinguishable from those in Hillman where the court observed that, ". . . the original complaint reveals only a bare bones complaint, totally lacking in any direction to the proper officer for service or a command to summon the defendant to appear in court." Hillman, supra, p. 525 (emphasis added).
The plaintiff had attached to the complaint a JD-CV-1 form which contained all of the required information called for in the form including, inter alia, the address of the court, the return date, the names and addresses of the parties, the name, address and telephone number of the attorney and the following language: "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." That is the form which the attorney omitted to sign.
As noted above, following the last sentence in the complaint, the attorney added the following language, "OF THIS WRIT, with your doings thereon, make due service and return."
While conceding that the prescribed practice under current rules calls for the attorney's signature to appear on the pre-printed writ of summons form, the plaintiff points out that "the writ of summons need not be technically perfect and need not conform exactly to the form set out in the Practice Book." Hillman, supra, p. 526.
The plaintiff further argues that the omission of the attorney's signature on the writ of summons form, while inconsistent with standard practice, was not prejudicial to the defendant who was served by proper officer which authorized him to summon the defendant to appear on a specific day to answer the complaint. See Village Creek Homeowners Ass'n., supra, p. 338-39. He cannot be said to have failed to understand that he was being sued because he retained counsel and made an appearance in this case.
Having reviewed the pleadings as filed and having considered the arguments of counsel and the applicable statutes, the Practice Rules and case law, the court finds that the omission of the attorney's signature where called for on the JD-CV-1 summons form cannot be overlooked nor can the attorney's signature in the recognizance portion of said form be considered an acceptable alternative to the missing signature.
As for the plaintiff's claim that the attorney's signature at the foot of the complaint, which includes the traditional words, " OF THIS WRIT, with your doings thereon make due service and return," the court finds that such instruction to the officer lacks the essential language which instructs, and more importantly, empowers the officer to summon the defendant to appear before the court.
Sec. 52-45b, C.G.S. provides that the form of legal process for the commencement of civil actions includes: "(1) Summons for appearance before the Superior Court. To any proper officer: By authority of the State of Connecticut, you are hereby commanded to summon A.B. of . . . to appear before the superior court for the judicial district of . . . on the . . . Tuesday of . . . the appearance not to be in person but be made by A.B. or his attorney by filing a written statement of appearance with the clerk of the court whose address is . . . on or before the second day following the return date then and there to answer to C.D. of . . . in a civil action in which the plaintiff complains and says . . ."
Merely by referring to the instrument as a "writ" over his signature at the foot of the complaint, does not permit the attorney to forego the essential language which distinguishes a proper summons from mere correspondence and which distinguishes a proper officer from a mere "deliveryman," as previously noted in Hartley v. Vitiello, 113 Conn. 74, 79, as cited in Village Creek Homeowners Assn., supra, at 339.
"The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . ." Village Creek Homeowners Assn., supra, 339. A writ of summons is a "statutory prerequisite" to the commencement of an action, and "it is an essential element to the validity of the jurisdiction of the court." Hillman v. Greenwich, supra, 526.
For the foregoing reasons, the defendant's motion to dismiss is hereby granted.
By the Court,
JOSEPH W. DOHERTY, JUDGE