Opinion
No. CV 03 0475868 S
August 11, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, Marina Lussier, filed a summons and complaint on April 1, 2003. In the complaint, the plaintiff alleges causes of action in legal malpractice against attorney Richard Franchi (first count) and his employer at the time of his representation of the plaintiff, the Law Offices of Alan E. Silver, P.C. (second count). The plaintiff correctly listed Franchi on both the summons and complaint. The matter is presently before the court because, although the plaintiff named the Law Offices of Alan E. Silver, P.C. in the complaint, she failed to list the law firm on the original summons. Instead, she listed Alan E. Silver as an individual defendant on the original summons and caused him to be served with process. The plaintiff thereafter filed an amended summons on May 6, 2003, in which she lists as defendants Franchi and the "Law Offices of Alan E. Silver, P.C. . . . By service upon agent for service Alan E. Silver."
The movants, Alan E. Silver and the Law Offices of Alan E. Silver, P.C. (law firm) filed a timely motion to dismiss claiming that the court lacks personal jurisdiction over them due to defects in the summons and complaint. The plaintiff responds that one of the defects is a misnomer, which is a circumstantial defect curable by amendment of the writ of summons under General Statutes § 52-123 and that she timely filed an amended writ of summons to cure the defect As required by Practice Book § 10-31(a) and (b), respectively, the movants filed a memorandum in support of their motion to dismiss, and the plaintiff timely filed a memorandum objecting to the motion. In addition, the court heard oral argument and the movants filed a reply to the plaintiff's objection.
Alan E. Silver's attorney filed an appearance on March 25, 2003, the very day service of process was made upon Alan E. Silver. While the Law Offices of Alan E. Silver, P.C. has not filed an appearance, the motion to dismiss states the movants are Alan E. Silver and the Law Offices of Alan E. Silver, P.C.
DISCUSSION
"[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction . . . Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Citations omitted; internal quotation marks omitted.) Kim v. Magnotta 249 Conn. 94, 101-02, 733 A.2d 809 (1999). A defendant, "wishing to contest the court's [personal] 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." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002); see also Practice Book § 10-30.
The movants find two defects in the original writ of summons, which they claim bar the court from asserting personal jurisdiction over them. First, they assert that the writ of summons is defective because it did not list the Law Offices of Alan E. Silver, P.C. as a defendant. Although the plaintiff did list the law firm as a defendant in the caption of the complaint and name it as a defendant therein, the movants argue that this was not sufficient to summon the corporate entity to court. Second, the movants argue that the plaintiff's listing of Alan E. Silver as an individual defendant on the writ of summons and serving process on him was error depriving the court of personal jurisdiction over him because the complaint does not allege a cause of action against him or list him as a defendant in the caption.
The plaintiff does not contest that she erroneously named Alan E. Silver as a defendant on the writ of summons. Instead, she states that it was a minor clerical error. Indeed, at oral argument, the plaintiff's attorney stated that the plaintiff was abandoning her claim against Alan E. Silver as an individual. Accordingly, the motion to dismiss is granted as to Alan E. Silver.
As to the Law Offices of Alan E. Silver, P.C., the plaintiff concedes that the summons is defective because she named an individual rather than the intended corporate defendant. The plaintiff argues, however, that General Statutes § 52-123 saves her action because the defect in the original writ of summons is a misnomer and thus is a circumstantial error which she has cured by filing an amended summons. The plaintiff cites case law for the proposition that a plaintiff's references to the intended defendant in the caption of a complaint and in the complaint itself should be considered in this circumstance. Furthermore, the plaintiff claims that the law firm was not prejudiced by the error. In their reply memorandum, the movants contend that the error here was not a misnomer and therefore was not a circumstantial defect. Instead, they state that the plaintiff made an incurable error.
"Practice Book [§ 8-1] provides that `[m]esne process in civil actions shall be a writ of summons . . . describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint.' . . .'In ordinary usage of the term, [a summons is the] original process upon a proper service of which an action is commenced and the defendant therein named brought within the jurisdiction of the court . . .' Ballentine's law Dictionary (3d Ed.). A summons is part of a citation . . . `[which] is a command to a duly authorized officer to summon the [defendant] . . . to appear in court on a specific day to answer the [complaint].'" Hillman v. Greenwich, 217 Conn. 520, 524, 587 A.2d 99 (1991); see also General Statutes § 52-45a.
"[A] writ of summons is a statutory prerequisite to the commencement of a civil action . . . [I]t is an essential element to the validity of the jurisdiction of the court . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons." (Internal quotation marks omitted.) Capers v. Lee, 239 Conn. 265, 273-74 n. 11, 684 A.2d 696 (1996); see also Coburn v. Quaratella, Superior Court, judicial district of New London, Docket No. CV 02 563074 (January 27, 2003, Corradino, J.) ( 34 Conn.L.Rptr. 32, 33) ("the court should look at the complaint to see if any deficiencies in the summons can be corrected or obviated by a reading of the complaint").
General Statutes § 52-123, the statute the plaintiff relies on, states, "no writ . . . 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." The purpose of § 52-123 is to "ameliorate the rigors of the common law that required the precise designation of all persons, whether or not parties to an action . . . [and] provide relief from defects in the text of the writ itself . . ." (Citation omitted.) Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434, 559 A.2d 1110 (1989). "It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects . . . Indeed, § 52-123 of the General Statutes protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties.' (Internal quotation marks omitted.) Boyles v. Preston, 68 Conn. App. 596, 603, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002).
Furthermore, "[s]ection 52-123 is a remedial statute and therefore it must be liberally construed in favor of those whom the legislature intended to benefit . . . The statute applies broadly to any writ issued in a civil action . . . Therefore, in this civil action, the plaintiff may invoke § 52-123 to amend the [writ] at issue if its error may be construed as circumstantial." (Citations omitted; internal quotation marks omitted.) Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995).
"[T]he effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed." (Internal quotation marks omitted.) Id., 397. In order to invoke the protection of § 52-123, the court first determines "whether the plaintiff had intended to sue the proper party or whether it had erroneously misdirected its action." Id. "Whether the plaintiff has misconstrued the identity of his or her intended defendant or merely the intended defendant's legal name or nature is a question that may be answered only after all the circumstances have been examined." Lussier v. Dept. of Transportation, 228 Conn. 343, 351, 636 A.2d 808 (1994).
Secondly, the court uses a three-prong test to analyze "whether the error was 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 Limited Partnership I v. Board of Tax Review, supra, 232 Conn. 397.
In this case, because the plaintiff listed the law firm in the caption of the complaint and named it as a defendant in the body thereof it is clear that she intended to sue the law firm and not Alan Silver individually and is not seeking a change of party. Moreover, the defect in the plaintiff's original writ of summons is a misnomer as indicated by the following circumstances. First, the law firm had actual notice of the action because the plaintiff served Alan E. Silver, who is the entity's agent for service of process, at his business address. Furthermore, the law firm knew or should have known it was the intended defendant because the complaint names the firm as a defendant and contains specific allegations against it. In addition, Alan E. Silver individually is never mentioned in the complaint, while variations of the "defendant Law Offices of Alan E. Silver, P.C." are stated four times. (Plaintiff's complaint pages 1, 7-8.) Finally, the movants have not shown that the law firm was prejudiced due to the listing of Alan E. Silver individually as defendant instead of the firm in the original writ of summons. "[T]he fact that the defendant received actual notice of this action weighs heavily in favor of the plaintiff; the defendant cannot be heard to say that he was prejudiced in any manner whatsoever." (Internal quotation marks omitted.) Four Beaches Condominium Assn. v. W.C. Brescia Plumbing Heating, Inc., Superior Court, judicial district of New Haven, Docket No. CV 96 0384124 (October 17, 1997, Zoarski, J.T.R.) ( 20 Conn.L.Rptr. 442, 445).
The variations include: 1) "defendant law firm, the Offices of Alan E. Silver, P.C."; 2) "defendant Alan E. Silver, P.C."; 3) "defendant Law Offices of Alan E. Silver"; and 4) "defendant Silver."
Because the plaintiff has shown that a circumstantial error existed on the writ of summons, General Statutes § 52-123 applies here. The motion to dismiss is denied as to the Law Offices of Alan E. Silver, P.C. on the condition that the plaintiff properly serve the amended summons and the complaint on the law firm within thirty days on the date of this decision.
As plaintiff states in her objection to the motion to dismiss, a plaintiff may amend the writ of summons. See Coburn v. Quaratella, supra, 34 Conn.L.Rptr. 35 ("a common sense reading of § 52-72 would seem to indicate it applies to matters beyond defective return of process"). General Statutes § 52-72 (a) and (b) provide that "[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or for any other reason is defective . . . Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form." The plaintiff filed the amended summons on May 6, 2003, but did not formally serve the amended summons and complaint on the Law Offices of Alan E. Silver, P.C.
Harper, J.