Opinion
No. CV08-5011151S
December 16, 2009
MEMORANDUM OF DECISION
Before the court is a motion to dismiss an apportionment complaint and the corresponding count of an amended complaint based on lack of personal jurisdiction and insufficient service of process.
FACTS
The plaintiff, Rocco Cipriano, commenced this action against Barbara Santa-Croce d/b/a McDonald's Restaurant and AJS Enterprises, alleging that he was caused to fall as a result of a defect in a parking area owned, leased, rented, controlled, maintained, operated, managed, and/or possessed by the defendants. Santa-Croce and AJS Enterprises brought an apportionment complaint against the Southington Water Department (hereinafter, "water department") by service of process on the Southington town clerk, naming the water department as the apportionment defendant. The defendants/apportionment plaintiffs allege that any injury sustained by the plaintiff was caused, in whole or in part, by the negligence of the water department. The apportionment plaintiffs seek apportionment of damages under General Statutes §§ 52-102b and 52-572h. The plaintiff, acting pursuant to Practice Book § 10-11(b), asserts a negligence claim against the water department in his second amended complaint. The water department, appearing in its own name, filed the present motion to dismiss.
The water department contends that the court lacks personal jurisdiction over it because it is not a proper party to the suit and that there was insufficient service of process.
Service was made on the Southington Town Clerk.
DISCUSSION
"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). Practice Book § 10-31 provides in relevant part: "The motion to dismiss shall be used to assert . . . insufficiency of service of process."
Before determining the merits of the motion to dismiss for insufficient service of process, the court must first determine whether the water department is a legal entity that is capable of being sued. The court lacks subject matter jurisdiction over claims against parties that are not distinct legal entities with the capacity to be sued. See Luysterborghs v. Pension Retirement Board, 50 Conn.Sup. 351, 357, 927 A.2d 385 [ 43 Conn. L. Rptr. 584] (2007); Noble v. Corkin, 45 Conn.Sup. 330, 332, 717 A.2d 301 [ 21 Conn. L. Rptr. 547] (1998). "By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial persons, but they must be entities [that] the law recognizes as competent." (Internal quotation marks omitted.); cf. Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). "[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).
The water department argues that, in order for an entity that is part of a municipality to be sued, the state legislature must specifically provide that the entity has the capacity to be sued. It further argues that no statute provides the water department with such capacity. The apportionment plaintiffs and the plaintiff argue that the legislature has specifically recognized the water department's capacity to be sued. They assert that the town had previously acquired, with permission under state law, the water works of the Southington Water Company, which itself had the capacity to sue and be sued. They contend that the legislature, in allowing the acquisition, noted that it was not the intent of the resolution to change the then-existing status of the parties in any way. They reason that the water department thus has the capacity to sue and be sued.
Addendum B to Apportionment Plaintiffs' Memorandum of Law in Opposition to Motion the Apportionment Complaint.
"The General Statutes do not contain a provision that generally establishes all municipal departments, boards, authorities and commissions as legal entities that operate separately from the municipality itself." Luysterborghs v. Pension Retirement Board, supra, 50 Conn.Sup. 355. "Unless departments within municipal government constitute distinct `bodies politic' under state law, the proper defendant is the municipality itself, not an administrative subdivision." Levine v. Fairfield Fire Dept., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 89 0146670 (April 9, 1999, Hodgson, J.). Whether a department is a distinct "body politic" capable of being sued depends on whether there is a specific statute enabling the department to be sued. See Luysterborghs v. Pension Retirement Board, supra, 355. There is no statute granting the water department the capacity to sue or be sued.
The defendants/apportionment plaintiffs submitted a copy of No. 198 of the 1882 Special Laws (9 Spec. Laws 609, § 1) in which the state legislature incorporated the water company as a private corporation for the purpose of providing water to the town and gave it the power "to sue and be sued." Also submitted is a copy of No. 468 of the 1901 Special Laws (13 Spec. Laws 1124), on which the apportionment plaintiffs and the plaintiff rely as the source of the legislature's recognition of the water department's capacity to be sued. In this resolution, the legislature granted the town the right to bring an application to the Superior Court for what is now the judicial district of Hartford in order to have the court determine what right the town had, if any, to acquire the water works owned by the water company pursuant to any previous resolutions. This resolution also established the board of water commissioners for the purpose of administering the operation of the water works.
In No. 88 of the 1883 Special Laws (9 Spec. Laws 756, § 6), which is not appended to the memorandum of law, the legislature had granted the town the opportunity to buy some of the capital stock of the water company, and furthermore, if the town adopted the enabling resolution, the legislature gave the town the option to acquire the "entire works of said company at any time within twenty years from the time of such acceptance . . ."
The evidence provided by the defendants/apportionment plaintiffs and the plaintiff fails to establish that the water department has the capacity to be sued. There is no mention of the water department in any of the attached documents relating to the town's purchase of the water works. Even assuming that the board of water commissioners is effectively the same as the water department, there is nothing in the resolution establishing the board of water commissioners that gave it the capacity to sue or be sued, or that transferred to it the water company's capacity to sue and be sued. See 13 Spec. Laws 1124, §§ 5-13.
Moreover, the notion that the legislature did not intend to change the present status of the parties is unavailing; the full quotation is as follows: "It is the intent of this resolution not in any way to change the present status of the parties except so far as to enable them to take the question [referring to the town's right to purchase the water works] to the court, and both parties shall be bound by the decree of the court." (Emphasis added.) 13 Spec. Laws 1124, § 1. This language communicates the legislature's intent not to modify the substantive rights of the town and the water company as to the potential purchase and sale of the water works, but instead to allow the court to adjudicate the nature of those rights. The language does not refer to the capacity of the water company generally to sue and be sued. Therefore, the town is the proper party to answer for a claim against the water department.
The defendants/apportionment plaintiffs and the plaintiff next argue that, if the town and not the water department was the proper party to be served, serving the apportionment complaint on the water department did no prejudice to the town because the defect can be cured by amendment.
"When the correct party is designated [in the writ, summons or complaint] in a way that may be inaccurate but [that] is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew [it] was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party. The issue, then, is whether a misnomer is a designation of the right party in a way [that] may be inaccurate but [that] is still sufficient for identification purposes or whether the wrong person has been designated as a party." (Internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414-15, 885 A.2d 768 (2005); see also General Statutes § 52-123.
There are "three factors [used] to determine whether [an] error [is] a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice." Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995).
Based on the record, the naming of the proper defendant, the town, as the water department, was a mere misnomer. According to the marshal's return, dated March 4, 2009, the marshal left a copy of the summons and apportionment complaint with the town clerk located at 75 Main Street, Southington, Connecticut. Under General Statutes § 52-57(b)(1), the town clerk is a proper party to accept service on behalf of a town, so it is safe to say that the town had actual notice of the apportionment claim.
The town knew or should have known that it was the intended defendant. According to an affidavit of the marshal, attached as addendum E to the objection, the town clerk specifically spoke up and accepted service on behalf of the water department despite another employee's desire to consult first with the town counsel. This suggests that the town was aware of its legal responsibility for the water department. See Andover Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 400-01 (finding that acceptance of service of process by town on behalf of the town's board of tax review, an improper party, was evidence that the town knew it was the intended defendant). Furthermore, the confusion existed not as to which organization was being hauled into court, but as to whether that organization could be brought into court independently of the municipality of which it is a part. See Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., supra, 92 Conn.App. 415 ("when the plaintiff's mistake in naming the party to be sued is not as to the entity itself, but rather as to the type of entity that party is, a correction may be made by amendment . . ."); cf. Ducey v. Walsh Construction Co., 6 Conn.App. 256, 260-61, 504 A.2d 565 (1986) (holding that naming a division of a company as if it were an independent entity was a misnomer); ITT Semiconductors v. Matheson Gas Products, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 89 029553 (October 2, 1991, Maiocco, J.) ( 5 Conn. L. Rptr. 80) (holding that the plaintiff's description of itself as "ITT Semiconductors, a division of ITT Corporation" rather than as "ITT Corporation, doing business as ITT Semiconductors" was a misnomer correctable by amendment).
Finally, the town was not misled to its prejudice in any way. It knew of the apportionment claim from the time that the apportionment complaint was served. Also, it correctly knew that the apportionment plaintiffs objected to the conduct of the water department in its maintenance of the utility valve cover.
The misnaming of the apportionment defendant as the water department instead of the town is correctable by amendment. Consequently, the misnaming of the water department in the negligence claim by the plaintiff, brought pursuant to Practice Book § 10-11(b), is correctable also by amendment. Therefore, the court has subject matter jurisdiction over the claim against the town by the apportionment plaintiffs as well as the plaintiff's claim for negligence.
Practice Book § 10-11(b) provides: "The plaintiff, within twenty days after [a] third party defendant appears in the action, may assert any claim against the third party defendant arising out of the transaction or occurrence [that] is the subject matter of the original complaint . . ."
Whether the plaintiff amends the name of the defendant in its negligence claim brought against the water department makes little practical difference because the third amended complaint already contains a nearly identical claim against the town for negligence.
The second issue is whether there was insufficient service of process. General Statutes § 52-57(b) provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen . . ." According to the marshal's return dated March 4, 2009, the marshal served a copy of the summons and apportionment complaint upon the town's clerk. Therefore, service was proper upon the town and the court has personal jurisdiction over the town.
CONCLUSION
The water department is an improper party to both the apportionment claim and the negligence claim because it lacks the legal capacity to be sued. The court does not lose subject matter jurisdiction over either claim, however, because the naming of the water department was merely a misnomer inasmuch as the town knew of the claim and knew it was the intended defendant. Moreover, service on the intended defendant, the town, was proper. Personal jurisdiction exists. Accordingly, the plaintiff and the apportionment plaintiffs shall be permitted to correct the misnomer by amendment, and the motion to dismiss is hereby denied.