Earlana Mundy et al. v. Ronald Clarke et al. (2012)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO DISMISS AND PLAINTIFFS' OBJECTION THERETO

The defendant, Brenton C. Miller, who appears as a self-represented party, moves to dismiss the present matter on the basis of insufficient process, claiming that he “was never served or sent any documentation from the Plaintiff concerning this case ․” Defendant's Motion to Dismiss, at 1. In response thereto, the plaintiffs, through counsel, have filed a written objection asserting that the defendant's motion fails to comply with Practice Book § 10–30 in that it was not filed within thirty days of the date on which the defendant appeared.   By their objection, the plaintiffs argue that the defendant's motion should be denied on the basis of this procedural flaw without consideration of the merits of the defendant's substantive claims.

The resolution of the plaintiffs' procedural objection turns not on whether the thirty-day period has expired, but on whether it ever started to run at all.  Practice Book § 10–30 provides that motions to dismiss attacking the sufficiency of process must be filed within thirty days of the defendant's filing of an appearance.   In this case, however, the defendant has not to date filed a appearance on the standard judicial form, either through counsel or as a self-represented party, and the motion to dismiss now before the court is the defendant's first formal pleading in this matter.   Recognizing that the thirty-day limit set forth in Practice Book § 10–30 is triggered by the filing of an appearance, the plaintiffs contend that the defendant, notwithstanding the absence of his formal appearance, should be deemed to have appeared either on October 24, 2011 or November 6, 2011, the dates on which he sent letters to the Clerk of the Superior Court inquiring about the status of a number of civil actions, including the present one.¹  Using the dates of these letters as the start of the thirty-day period at issue here, and noting that the defendant's motion to dismiss was not filed until February 10, 2012, the plaintiffs argue that the defendant's motion was filed more than thirty days after the defendant “appeared” through these letters.   Citing Practice Book § 10–30, the plaintiffs claim that the defendant's motion is untimely and therefore must be denied on this procedural basis.   The defendant, in reply, disputes the claim that he appeared of record merely by writing letters to the court about this case.   Under the circumstances present here, the court agrees with the defendant.

Simply stated, upon consideration of the substance of the letters sent by the defendant, the court declines to characterize them as a de facto appearance under the law adequate to fulfill the requirements of Practice Book § 3–3.   In reaching this conclusion, the court is aware, of course, that “the entry of an appearance need not necessarily be made by filing a formal appearance form.”  Fontaine v. Thomas, 51 Conn.App. 77, 81 (1998).   The court also accepts that a letter to the clerk could be deemed an appearance in a given case, if the representations contained in the letter were sufficient to substantially “satisfy the minimum requirements of appearance under Practice Book § 3–3.”  Angiolillo v. Buckmiller, 102 Conn.App. 697, 715–16 citing Fontaine v. Thomas, supra, 51 Conn.App. 82.   But the letters in question here cannot reasonably be interpreted to signal an intent by the defendant to appear of record in the present matter.   In one or both of his letters to the clerk, the defendant characterizes the present action and others as “past cases,” and stresses specifically as to this case that he “was never served or sent any documentation from the court or plaintiff.”   He goes on in the November 6, 2011 letter to request a copy of the complaint so as to be “able to prepare a defense and or answer.”   In the court's opinion, where an unrepresented party comes to learn of a pending action against him, and does nothing more than ask the clerk for a copy of a complaint in order to determine how best to proceed, the party does not thereby “appear” in the case and start the clock running on the various procedural requirements within the Practice Book. Accordingly, the court rejects the plaintiffs' claim here that, by sending two such letters in this case, the defendant appeared of record and had only thirty days from the date of the letters within which to raise the claim that he had never been served with process as required by law.   For this reason, the procedural objection raised by the plaintiffs is hereby overruled.

The court hastens to add, however, that this ruling does not serve to address or resolve the substantive merits of the defendant's motion to dismiss.   The court notes in this regard that the defendant, an out-of-state resident, contends in his motion that he was never served with any formal notice of this action, and learned of it only upon receiving a motion for default in the mail.   The court record contains, however, a marshal's return purporting to indicate that proper service was made pursuant to Gen.Stat. § 52–59b upon the Secretary of the State and to the defendant's last known address.   Because such statutory method of constructive service was employed by the plaintiffs, they bear the burden of proof as to the sufficiency of process and “jurisdiction cannot arise solely from the acts recited in the [marshal's] return.”  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53 (1983).   Accordingly, the parties are ordered on or before May 18, 2012 to file such pleadings, affidavits and materials as they may deem relevant to the court's resolution of the merits of the claims raised in the defendant's motion to dismiss, and then to appear for oral argument on such motion on the May 21, 2012 short calendar.

THE COURT

Gold, J.

FOOTNOTES

FN1. Copies of these letters, and of other correspondence, are attached as exhibits to the plaintiffs' objection..  FN1. Copies of these letters, and of other correspondence, are attached as exhibits to the plaintiffs' objection.

Gold, David P., J.