Middlesex Mut. Assur. Co. v. Clinton

• Decision Date: 01 August 1995
• Docket Number: No. 13428,13428
• Citation: 38 Conn.App. 555,662 A.2d 1319
• Court: Connecticut Court of Appeals
• Parties: MIDDLESEX MUTUAL ASSURANCE COMPANY v. Edward CLINTON et al.

Page 1319

662 A.2d 1319

38 Conn.App. 555

MIDDLESEX MUTUAL ASSURANCE COMPANY v. Edward CLINTON et al.

No. 13428.

Appellate Court of Connecticut.

Argued March 21, 1995.

Decided Aug. 1, 1995.

Judith Clinton, pro se.

Joel J. Rottner, with whom was Barbara Sacks, West Hartford, for appellee (plaintiff).

Before LANDAU, SCHALLER and SPEAR, JJ. LANDAU, Judge.

The defendant Judith Clinton appeals from the judgment of the trial court ordering her to proceed with an appraisal. ¹ She claims that the trial court (1) did not have jurisdiction to consider the plaintiff's application to compel the appraisal and (2) improperly granted the application to compel the appraisal because (a) the court failed to consider the rights of the parties, (b) General Statutes §§ 52-410 and 52-411 provide statutory relief only for an aggrieved insured, not an insurer, and (c) the plaintiff presented no evidence of an appraisal agreement or of a dispute as to the value of the loss.

The following facts are relevant to our consideration of the defendant's claims. On April 21, 1993, Edward Clinton and Judith Clinton suffered a loss by fire at premises owned by them and insured by the plaintiff under a homeowner's policy. After the parties were unable to agree as to the value of the loss, the plaintiff appointed an appraiser pursuant to an appraisal clause in the insurance policy. ² After the Clintons failed to appoint an appraiser, they were served with an application for an order to proceed with an appraisal and for the appointment of an appraiser pursuant to §§ 52-410 and 52-411. ³ The trial court conducted a hearing on the plaintiff's application and, on March 8, 1994, granted the application and ordered the Clintons to proceed to appraisal. ⁴ This appeal by the defendant followed.

I

The defendant first challenges the trial court's authority to have heard the plaintiff's application to compel appraisal. Specifically, she argues that the court lacked jurisdiction because (1) the plaintiff filed its application on Form JD-CV-1, which Practice Book § 49 excludes from use in matters pertaining to arbitration, (2) the plaintiff failed to make a proper appearance, (3) the plaintiff changed the return date on the original writ from March 1, 1994, to March 8, 1994, before the writ was served on the defendant, (4) the plaintiff included a recognizance in its application, (5) the plaintiff failed to attach a copy of the arbitration agreement to its application as an exhibit, (6) a contract of appraisal does not grant the trial court power to appoint an arbitrator or to order arbitration and (7) the plaintiff failed to achieve personal service on all defendants. We will consider the defendant's arguments seriatim.

A

The defendant first argues that the trial court lacked jurisdiction because the plaintiff filed its application to compel appraisal on Form JD-CV-1. She asserts that Practice Book § 49, which outlines the requirements for mesne process, provides that "Form JD-CV-1 shall not be used in ... [p]roceedings pertaining to arbitration."

A defect in process, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992). Our Supreme Court has held, however, in the context of an administrative appeal, that the improper use of Form JD-CV-1 does not defeat the Superior Court's jurisdiction "[a]s long as it contains a proper citation, signed by a competent authority...." Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986). In Chestnut Realty, "the court examined the contents of the form and, finding that the information adequately gave notice to the defendant of the nature of the proceedings, it concluded that, absent a showing of prejudice by the defendant, the use of the incorrect form did not mandate dismissal of the administrative appeal." Carlson v. Fisher, 18 Conn.App. 488, 493, 558 A.2d 1029 (1989).

We conclude that the same reasoning is applicable in the context of this case. " 'It is elementary that the [defendant] cannot be bound by the action of the court without reasonable notice and an opportunity to be heard.' " Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d 55 (1993). In this case, the defendant, while served with the incorrect form, nonetheless received actual notice of the proceedings. She was personally served on February 24, 1994, with the Form JD-CV-1 writ, the plaintiff's application to compel appraisal and an order to appear on March 7, 1994, and show cause why the application should not be granted. On the following day, February 25, 1994, the defendant filed an appearance, an answer and a motion to dismiss the defendant's application. Also, the defendant personally appeared at the March 7 show cause hearing. Thus, because the contents of the form adequately gave notice to the defendant of the nature of the proceedings and because the defendant has not shown prejudice arising from the use of the incorrect form, we must conclude that the plaintiff's lack of compliance with Practice Book § 49 was not fatal to the trial court's jurisdiction.

B

Our conclusion that the plaintiff's use of Form JD-CV-1 in this matter was harmless dictates that the defendant's next argument must fail. She asserts that the plaintiff failed to make a proper appearance because its appearance was made by virtue of the Form JD-CV-1 writ, which may not be used in matters pertaining to arbitration. Because its underlying premise is not supportable, this claim is without merit.

C

The defendant next argues that the plaintiff's alteration of the return date deprived the trial court of jurisdiction. The application to compel appraisal was originally made returnable to the court on March 1, 1994. On February 24, 1994, the serving sheriff contacted counsel for the plaintiff and reported that he had been unable to locate the defendant until that day. Counsel for the plaintiff authorized the sheriff to alter the return date from March 1 to March 8, 1994, before serving the defendant. ⁵

The defendant relies on Denison v. Crafts, 74 Conn. 38, 49 A. 851 (1901), for the proposition that a plaintiff cannot lawfully change the return date in his writ after its issue and before service, unless the writ is reissued at the time of the alteration. The defendant's reliance on this case, however, is misplaced. In Denison, the court held that a pro se plaintiff did not have the authority to alter process. Denison has since been cited for the proposition that only the issuing authority can change the return date of a writ. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.1982) § 21b. In the case at hand, the alteration of the return date was made with the express authorization of the plaintiff's counsel, a commissioner of the Superior Court duly authorized to issue writs. ⁶ For this reason, we conclude that the alteration of the return date is not, as the defendant claims, a jurisdictional defect.

In a subsidiary argument, the defendant asserts that the March 1, 1994 return date, which was subsequently altered, did not give her enough time to respond under the applicable accelerated pleading schedule of General Statutes § 52-410(c), which provides that "[t]he parties shall be considered as at issue on the allegations of the complaint unless the defendant files answer thereto within five days from the return day...." ⁷ Because the alteration was effective, however, the return date was March 8, 1994. The defendant was served on February 24, 1994, giving her a legally sufficient eight days within which to file an answer.

D

The defendant also contends that the trial court's jurisdiction was affected by the plaintiff's inclusion of a recognizance in its application to compel appraisal. She argues that the provision of a recognizance was improper because a recognizance is not required in arbitration proceedings. Fishman v. Middlesex Mutual Assurance Co., 4 Conn.App. 339, 345-46, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985) (plaintiff's application to compel arbitration pursuant to § 52-410 not subject to dismissal on basis of lack of recognizance). The court in Fishman noted that arbitration proceedings are " 'intended to avoid the formalities, the delay, the expense and vexation of ordinary litigation.' In re Curtis-Castle Arbitration, 64 Conn 501, 511, 30 A. 769 (1894)...." (Citations omitted.) Id., at 345, 494 A.2d 606. "To the extent that arbitration proceedings are viewed as requiring all the formal trappings of civil actions, those policies would be frustrated." Id. Just as the Fishman court determined that the omission of a recognizance did not defeat the trial court's jurisdiction to hear an application to compel arbitration, we conclude that the inclusion of the same, albeit an unnecessary "formal trapping of civil actions," likewise does not undermine the court's jurisdiction.

E

The defendant next argues that the plaintiff's application to compel appraisal was defective because the plaintiff failed to attach a copy of the arbitration agreement, as required by § 52-410. The plaintiff admits that it did not attach a copy of the arbitration agreement to its application, but asserts that § 52-410 permits but does not require such an attachment.

"In order to resolve the issue presented to us, we must resort to statutory interpretation in accordance with well defined principles that require that we ascertain and give effect to the apparent intent of the legislature.... To determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution.... If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature ... and we need inquire no further.... The words of a statute must be interpreted according to their ordinary meaning...