Opinion
No. LLI CV 08 5004014S
September 16, 2008
MEMORANDUM OF DECISION
ISSUE
Whether the defendant's motion to dismiss the plaintiff's application for prejudgment remedy on the ground that it is fatally defective should be granted? The court denies the motion to dismiss because the plaintiff complied with the statute regarding prejudgment remedies and the alleged defects in the application are circumstantial and curable.
FACTS
The plaintiff, the Doyle Group, filed a one-count complaint on May 9, 2008, seeking damages for breach of contract. On June 16, 2008, the defendant, Alaskans for Cuddy, filed an appearance through counsel. Thereafter, on August 12, 2008, the plaintiff filed a notice of application for prejudgment remedy, a motion for prejudgment remedy and an affidavit of the president of the Doyle Group in support of its motion for prejudgment remedy.
On August 19, 2008, the defendant filed a motion to dismiss the plaintiff's application for prejudgment remedy, arguing that the plaintiff failed to comply with the statutory requirements of General Statutes §§ 52-278a through 52-278n and that the plaintiff's application contains fatal defects. On August 28, 2008, the plaintiff filed a timely memorandum of law in opposition. This court heard the matter on September 8, 2008.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [The question of subject matter jurisdiction] . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
The defendant moves to dismiss the plaintiff's application for prejudgment remedy claiming this court lacks jurisdiction because the application contains several fatal defects. Specifically, the defendant argues that the plaintiff's motion for prejudgment remedy is defective in that it fails to include the notice and hearing language required by § 52-578c(e) and that the plaintiff's notice of application for prejudgment remedy is defective because the plaintiff (1) did not attach its application or supporting papers, (2) incorrectly listed defense counsel as the appearing counsel for the plaintiff, (3) listed the name of the plaintiff as "Doyle, D'Amore and Balducci" as opposed to "the Doyle Group" and (4) omitted the docket number. The plaintiff counters that it does not have to comply with §§ 52-278a through 52-278n because it filed its application for prejudgment remedy after it commenced the present action. It also notes that the defendant has not claimed to have been harmed by any of the alleged defects.
The notice of application for prejudgment remedy in the court file does contain the docket number in the bottom right hand corner of the form.
Section 52-278h expressly allows a plaintiff to seek a prejudgment remedy after an action has been commenced, directing that "the provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and [that] the forms and procedures provided therein shall be adapted accordingly." Section 52-278b provides in relevant part: "[N]o prejudgment remedy shall be available to a person . . . unless he has complied with the provisions of sections 52-278a to 52-278g, inclusive . . ." Pursuant to §§ 52-278b and 52-278h, the plaintiff does have to follow the statutory mandates of §§ 52-278a to 52-278g, even though it commenced the present action against the defendant prior to filing its application for prejudgment remedy.
Contrary to the defendant's argument, the plaintiff has met the requirements of §§ 52-278a to 52-278g. On August 12, 2008, the plaintiff filed a notice of application for prejudgment remedy, a motion for prejudgment remedy and an affidavit in support of its motion for prejudgment remedy, as required by § 52-278c(a). The notice form contains the notice of rights and claim for hearing language required by § 52-278c(e).
Section 52-278c(a) also requires that these documents be attached to an unsigned writ, summons and complaint and that all the documents be personally served on the defendant. General Statutes § 52-278c(a). Section 52-278m, however, permits the plaintiff to serve the documents "in the same manner as any motion" if the defendant has already filed a general appearance in the action, as the defendant has in the present case. General Statutes § 52-278m. The plaintiff, therefore, did not have to and did not have the documents personally served on the defendant. Courts have also held that pursuant to § 52-278h the plaintiff does not have to attach an unsigned writ, summons, and complaint to the required documents since the action has already been commenced. See First City Bank v. Scarritt, Superior Court, judicial district of New Britain, Docket No. CV 98 081695 (May 12, 1999, Tanzer, J.); Laperle v. KB Ambulance Corps, Superior Court, judicial district of Windham, Docket No. CV 98 0058133 (July 30, 1998, Sferrazza, J.) [22 Conn. L. Rptr. 508]; Fleet Bank, N.A. v. Central Realty Associates, Superior Court, judicial district of Hartford, Docket No. CV 96 0447010 (January 7, 1998, Teller, J.) (21 Conn. L. Rptr. 174).
Despite this compliance, the defendant contends that the plaintiff's application for prejudgment remedy is fatally defective because it received the plaintiff's notice for application several days after having received the plaintiff's motion for prejudgment remedy and affidavit in support thereof. Section 52-278c(e) does require that a notice form accompany an application for prejudgment remedy. General Statutes § 52-278c(e). Failing to include the notice form is a fatal defect unless the defendant receives it prior to the hearing and has not been prejudiced by the delay. Compare Laperle v. KB Ambulance Corps, Superior Court, judicial district of Windham, Docket No. CV 98 0058133 (July 30, 1998, Sferrazza, J.) (granting motion to dismiss the plaintiff's application for prejudgment remedy because its "failure to include the notice . . . is a fatal defect") with Spencer v. Steel Structures, Inc., 96 Conn.App. 142, 154-44, 900 A.2d 42 (2006) (upholding the issuance of a prejudgment remedy despite the defendants' claim of error that the application was procedurally defective because "other than raising a nominal claim of prejudice, [the defendants] have failed to particularize the manner in which the delay in their receipt of the notice caused them to suffer any harm").
In the present case, it is undisputed that the defendant did receive the requisite notice form prior to the hearing date. In its memorandum of law, the defendant states that it received the plaintiff's notice of application for prejudgment remedy on August 13, 2008. The plaintiff's application for prejudgment remedy did not appear on the short calendar until September 8, 2008. The defendant, therefore, received the notice form well in advance of the hearing date. Moreover, the defendant has not demonstrated that the delay has prejudiced it in any manner. Consequently, the plaintiff's failure to attach the notice form to its motion for prejudgment remedy and affidavit in support thereof upon serving them on the defendant is not a fatal defect.
The defendant also argues that the plaintiff's notice of application for prejudgment remedy itself is fatally defective because it contains errors that prohibit it from being identified as relating to the present case. Even though the plaintiff listed its name as "Doyle, D'Amore and Baluducci" and defense counsel as the appearing counsel for the plaintiff on the notice form and apparently omitted the docket number on the copy that it sent to the defendant, the notice form contains the correct case name, " The Doyle Group v. Alaskans for Cuddy," and in the first paragraph of its complaint, the plaintiff identified itself as "The Doyle Group, d.b.a. Doyle, D'Amore and Balducci." The defendant, therefore, had prior notice that the plaintiff also referred to itself as "Doyle, D'Amore and Balducci" and should have been able to determine that the notice form that it received shortly after receiving the plaintiff's motion for prejudgment remedy and affidavit in support thereof corresponded to the present action, especially since the form contained the correct case name.
Moreover, the defects on the notice form itself are not fatal; they are curable and circumstantial. The overarching purpose of requiring the notice form is to ensure that a defendant is informed of his or her rights regarding the application for prejudgment remedy. See Laperle v. KB Ambulance Corps, supra, Superior Court, Docket No. CV 98 0058133 ("[b]y requiring applicants for prejudgment remedies to include such language in their applications, the legislature has indicated that such warning and mechanism for objecting to the encumbering of property is of paramount importance"). The defects in the plaintiff's notice form have not frustrated this purpose; the notice form, as admitted by the defendant in its memorandum of law, includes the notice of rights and claim for hearing language required by § 52-278c(e). The defects, therefore, are circumstantial and curable.
CONCLUSION
Therefore, the motion to dismiss the plaintiff's application for prejudgment remedy is denied.