Gregory Bria v. Michael Powers (2012)

MEMORANDUM OF DECISION

The plaintiff, Gregory Bria, brought a one-count complaint against the defendant, Michael Powers, alleging negligent misrepresentation.   The complaint, filed December 19, 2011, alleged the following facts.   On or prior to February 5, 2007, the plaintiff retained the defendant, an attorney, to represent him in prosecuting a legal action and the defendant represented that he possessed and would exercise the necessary skill, prudence and diligence in his representation in the matter.   The defendant acted negligently in that:  he did not possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation, he failed to consult with or abide by the plaintiff's decisions concerning the objectives of his representation, he failed to promptly inform or reasonably consult with the plaintiff about his representation, he failed to comply with the plaintiff's reasonable requests for information and he failed to obtain the plaintiff's consent to accept the offer and failed to act to effectuate the settlement which he accepted on the plaintiff's behalf.

On February 23, 2012, the defendant filed a motion to dismiss with an accompanying memorandum of law in support of the motion.   That motion claims that the plaintiff's action must be dismissed due to a lack of jurisdiction and insufficiency of process.   The motion points out that the JD–CV–1 civil summons form signed by the plaintiff's counsel does not name Michael Powers as a defendant, but instead lists his name as an additional plaintiff in violation of General Statutes §§ 52–45a ¹ and Practice Book § 8.1(a).²  On March 8, 2012, the plaintiff filed a memorandum of law in opposition to the motion to dismiss.   The motion was heard on the short calendar on March 12, 2012.

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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706 (2010).  “The varied procedures potentially applicable on a motion to dismiss for want of jurisdiction arise from the fact that the motion to erase and the plea in abatement available under our former rules of practice ․ were combined under Practice Book § 10–30, the current rule of practice governing motions to dismiss.”  Conboy v. State, 292 Conn. 642, 654 n.18 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985), citing Practice Book § 143, which is now § 10–31.  “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.”  (Internal quotation marks omitted.)  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825 (2007).  “Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.”  (Internal quotation marks omitted.)  St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 740 (2010), cert. denied, 300 Conn. 906 (2011).

The defendant argues in his memorandum of law that the summons does not name him as the defendant, but rather as an additional plaintiff, which violates General Statutes §§ 52–45a and Practice Book § 8.1, leaving the court with no personal jurisdiction or subject matter jurisdiction.   The plaintiff's memorandum of law in opposition argues that, pursuant to General Statutes § 52–123, the case should not be dismissed because the “defendant is clearly identified as a defendant” in the complaint and the court and the defendant himself both understood the status of the parties.   The plaintiff further argues that at most, the court “should require the plaintiff to file an amended summons.”

General Statutes § 52–123 provides:  “No writ, pleading, judgment or any kind of proceeding in court or course of justice 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.”

It appears that no Connecticut court has addressed the issue of the effect of writing the defendant's name under the additional plaintiff section in a summons.   However, Connecticut courts have addressed similar transcription errors that have arisen in completion of a JD–CV–1 civil summons form.   The Supreme Court “repeatedly has eschewed applying the law in such a hypertechnical manner so as to elevate form over substance.”  (Internal quotation marks omitted.)  Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34 (2004).  “[A] defendant designated by an incorrect name, is referred to as a ‘misnomer.’   It is a circumstantial defect anticipated by General Statutes § 52–123 that can be cured by amendment.   A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant.”  Lussier v. Department of Transportation, 228 Conn. 343, 350 (1994) (ruled circumstantial defect when the caption of the complaint listed the correct defendant, but the summons did not).  “When the correct party is designated in a way that may be inaccurate but which 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 he or she was the intended defendant.”  Id.

“[O]ur Supreme Court has held in numerous circumstances that the mislabeling or misnaming of a defendant constituted a circumstantial error that is curable under § 52–123 when it did not result in prejudice to either party.”   America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 478 (2005).  “[T]he policy of the law today is to correct not to dismiss this type of defect and permit plaintiffs to amend, by means of § 52–72.”   Ryan v. Depamphilis, Superior Court, judicial district of Hartford, Docket No. CV 04 4002606 (Hale, J.T.R., April 28, 2005) (39 Conn. L. Rptr. 293, 295).

The Supreme Court has endorsed a three-part test to determine “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, 232 Conn. 392, 397 (1995) (concluded to be a circumstantial error when the summons incorrectly named the board of tax review of West Hartford because the defendant had notice of the suit and it was clear which entity the plaintiff sought to sue).

In the present matter, the defendant, though incorrectly listed as an additional plaintiff on the summons, was named correctly as the defendant in the complaint and the caption for the complaint.   Furthermore, the defendant was served process at his usual place of abode and had actual notice of the action brought against him, which is evidenced by his entering an appearance as the defendant.   In both his motion to dismiss and the memorandum of law filed in support of that motion, the defendant fails to identify any prejudice which he claims to have suffered as the result of this defect.   He clearly knew that the action was brought against him as the defendant and he was not prejudiced by the scrivener's error, however haphazard the error may have been on the plaintiff's part.   It is clear that the plaintiff's intention was to sue the defendant because only one other party was listed on the summons;  the other party was incorrectly listed in the section for additional plaintiffs rather than as a defendant.   Applying the three-part test to this case it is clear that the defendant:  1) had actual notice of the action brought against him;  2) knew or should have known he was the intended defendant;  and 3) was not misled to his prejudice due to his being incorrectly labeled as an additional plaintiff rather than as a defendant.   Any defect in the summons, accordingly must be considered a circumstantial defect rather than substantive one.   The defendant's motion to dismiss is therefore denied.

David R. Tobin, J.

FOOTNOTES

FN1. “Civil action shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place of filing of an appearance and information required by the Office of the Chief Court Administrator ․.  FN1. “Civil action shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place of filing of an appearance and information required by the Office of the Chief Court Administrator ․

FN2. “Mesne process in civil actions shall be a writ of summons or attachment, 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 ․.  FN2. “Mesne process in civil actions shall be a writ of summons or attachment, 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 ․

Tobin, David R., J.