Opinion
No. CV 07 5003459 S
April 17, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS
I. Background
This application for discharge of a mechanic's lien came before the court on the April 9, 2007 Miscellaneous and Special Proceedings Calendar. The plaintiff, Jelliff Mill, Inc., (Jelliff Mill) seeks to discharge or reduce a mechanic's lien placed on its residential property located at 293 Jelliff Mill Road in New Canaan by West Haven Lumber Co. (West Haven).
The procedure for applications for discharge or reduction are governed by General Statutes § 49-35a. That statute requires the application to be submitted to court along with a proposed order and summons. The application is for a hearing to determine whether a lien should be discharged or reduced. If the application for a hearing is granted by the court, an order is signed by a judge or clerk setting a date for the hearing and providing for notice of the hearing to the lienor. General Statutes § 49-35a(b)(1). The original of the documents are returned to the applicant's attorney for service. Id. (b)(2). The forms for the application, order and summons are set forth in the statute.
In this case the plaintiff submitted papers largely in conformance with the statute, and on February 23, 2007 a clerk of the Superior Court signed an order setting April 9, 2007 for the hearing and ordering that copies of the application and the order be served on West Haven Lumber. The papers were served by a state marshal on the defendant on March 1, 2007. However, it is undisputed that the summons given to the marshal directing the marshal "by the authority of the State of Connecticut" to serve the papers on West Haven was not signed even though there was a signature line for the signature of a Commissioner of the Superior Court.
On April 9, 2007 West Haven Lumber made an oral motion to dismiss Jelliff Mill's application and followed with a written motion to dismiss on April 11, 2007, the date on which the court had asked for the submission of briefs on the jurisdiction question. Jelliff Mill also filed a brief on that day.
II. Discussion
At the outset it appears that the precise issue of whether an unsigned summons makes service of an application for discharge of a mechanic's lien ineffective has not been addressed by courts in Connecticut. However, the question of whether an unsigned summons makes service of papers commencing a civil proceeding ineffective has been addressed in other circumstances, and the court's jurisdiction has been found wanting. In Hillman v. Greenwich, 217 Conn. 520, 525 (1991), the Connecticut Supreme Court, in the context of an administrative appeal, held that a "citation signed by a 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 . . . Without it, the officer would be little more than a deliveryman." The court went on to hold that a citation in an administrative appeal is analogous to a writ of summons. Id., 526; see also Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 550 (1992). More recently, the Appellate Court has noted the importance of a " signed summons" and reiterated that "the writ in order to be `due process of law' must be signed by . . . a . . . commissioner of the Superior Court, and further quoted the Connecticut Supreme Court as follows: "[t]he subject of signing and issuing process in a civil action is one of consequence. Such signing is one of the processes of law by which a man may be deprived of his liberty and property. It is carefully guarded. It is not to be done indiscriminately . . . The signing of a writ by a person as commissioner of the Superior Court is not a mere ministerial act . . . The canons of professional ethics require that a lawyer decline to institute an action if he is convinced that it is intended to harass or injure the opposite party or work an oppression or wrong." Bernhard-Thomas Building Systems v. Dunican, 100 Conn.App. 63, 73 and n. 10 (quoting Sharkiewicz v. Smith, 142 Conn. 410) (emphasis in original.)
Several Superior Court decisions have held that a court lacked personal jurisdiction if the defendant was served with an unsigned summons or a summons not signed by commissioner of the Superior Court, judge or clerk in accordance with Practice Book § 8-1. See e.g. Falcon Paving Inc., v. Koch Builders, judicial district of Hartford, CV 05 4008930 (August 1, 2005, Shapiro, J.) [ 39 Conn. L. Rptr. 640]; Buckner v. Buckner, Superior Court, judicial district of Stamford-Norwalk, CV 05 4004932 (May 24, 2006, Dooley, J.) [ 41 Conn. L. Rptr. 387].
In opposition to the motion to dismiss, Jelliff Mill points to General Statutes § 52-123 which provides that "no writ, pleading, or judgment of any kind of proceeding in court . . . shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court". This statute, however, "is not available to cure irregularities in the service or return of process. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 434 (1989). In Hillman v. Greenwich, supra, 217 Conn. 528, the Connecticut Supreme Court held that the failure to sign the citation commencing an administrative appeal was "jurisdictional, not circumstantial in nature and, thus, the pleading was not precluded from abatement under General Statutes § 52-123."
The plaintiff also relies on Boyles v. Preston, 68 Conn.App. 596 cert. denied, 261 Conn. 901 (2003), and Sargent v. Capital Airlines, Inc., 96 Conn.App. 320 (2006). Neither authority is on point. In Boyles the defect in the summons did not involve the failure to sign the summons. In Sargent the plaintiff's attorney signed on the recognizance line and also signed the last page of the complaint which said "OF THIS WRIT, with your doings thereon make due service and return." The Appellate Court found this gave the process server sufficient direction and the necessary authority to serve the defendants. No such direction or authority is provided in the summons at issue in this case, because it was not signed by a competent authority.
III. Conclusion
For the reasons set forth above, the motion to dismiss is granted.