Stewart-Brownstein v. Casey, (AC 18036)

CourtAppellate Court of Connecticut
Writing for the CourtFOTI, J.
Citation728 A.2d 1130,53 Conn. App. 84
Docket Number(AC 18036)
Decision Date27 April 1999

53 Conn. App. 84
728 A.2d 1130


(AC 18036)

Appellate Court of Connecticut.

Argued January 21, 1999.

Officially released April 27, 1999.

Foti, Landau and Dupont, Js.

53 Conn. App. 85
Jeffrey D. Brownstein, for the appellant (plaintiff)

Arnold B. Abrams, for the appellees (named defendant et al.).

Linda J. Cannata, for the appellee (defendant Phillips Home Inspection Services).



The plaintiff, Linda Stewart-Brownstein, appeals from the judgment of the trial court dismissing her complaint for lack of subject matter jurisdiction. The sole issue before this court is whether the plaintiffs failure to comply with General Statutes (Rev. to 1997) § 52-45a1 or Practice Book § 8-12 deprived the trial court

53 Conn. App. 86
of subject matter jurisdiction, which may not be waived, or of personal jurisdiction, which may be waived

The pro se plaintiff, who is not an attorney, filed an action in Superior Court against the defendants, Concetta Casey, Clarence Casey and Phillips Home Inspection Services, seeking damages and equitable relief arising from her purchase of a home in Meriden. The writ of summons accompanying the plaintiffs complaint was not signed by a commissioner of the Superior Court or the clerk of the court.3 Appearances were then filed on behalf of the Caseys, and a pro se appearance was filed by Curtis J. Phillips on behalf of Phillips Home Inspection Services. Phillips is a sole proprietor doing business as Phillips Home Inspection Services. Thereafter, the plaintiff filed a revised complaint to which the Caseys, through counsel, filed an answer and special defenses. Phillips filed an answer on behalf of Phillips Home Inspection Services.

The plaintiff then filed a reply to the Caseys' special defenses. Thereafter, counsel appeared on behalf of Phillips Home Inspection Services and filed a motion to dismiss the plaintiffs complaint for lack of subject matter jurisdiction.4 The plaintiff filed an opposition to the motion to dismiss, along with a memorandum of law, as well as a motion for permission to file an

53 Conn. App. 87
amended complaint. On December 1, 1997, the trial court granted the motion to dismiss after granting the Caseys' oral request to join in that motion. The plaintiff did not attend the argument

The trial court found that the plaintiffs "summons was presented to the clerk of the court. The plaintiff admits that the summons had defects. The clerk of the court did not sign the summons as is the clerk's responsibility pursuant to [General Statutes § 52-45a] because of those defects." "The act of the clerk in signing the writ on behalf of a pro se plaintiff is ... purely ministerial. The clerk has no discretion whatsoever to refuse to sign the writ of a pro se litigant in a cause of action unless the writ is defective as to form or lacks a bond for prosecution." Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 554, 610 A.2d 1260 (1992).

The trial court then concluded that "[t]he failure of the plaintiffs summons to be signed by a commissioner of the Superior Court or the clerk of the court deprives the court of subject matter jurisdiction. To rule otherwise would allow anyone to institute a suit without the protections afforded by [§ 52-45a]. This suit was never commenced properly. The other defects may have been correctable but the absence of the plaintiff at argument on the motion to dismiss deprived the court of the opportunity to address curative measures designed to remedy these flaws."

Practice Book § 8-1 (a) 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 plaintiffs complaint. Such writ... shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable....." (Emphasis added.) See also General Statutes § 52-45a. "In ordinary usage of the term, [a

53 Conn. App. 88
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.)." (Emphasis added; internal quotation marks...

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12 cases
  • Mejias v. Sebastian, No. FA98-0116648 (CT 12/1/2004), FA98-0116648
    • United States
    • Supreme Court of Connecticut
    • December 1, 2004
    ...Demar v. Rocky Hill Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989); Stewart-Brownstein v. Casey, 53 Conn.App. 84, 88, 728 A.2d 1130 Where the writ of summons was not signed by a commissioner of the Superior Court or the clerk of the court thus failed to compl......
  • Statewide Grievance Committee v. Burton, 25284.
    • United States
    • Appellate Court of Connecticut
    • April 19, 2005
    ...required, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Stewart-Brownstein v. Casey, 53 Conn.App. 84, 88, 728 A.2d 1130 There is a distinction between a court's jurisdiction and its statutory authority to act. See 1 Restatement (Second) Jud......
  • Raynor v. Hickock Realty Corp., (AC 19578)
    • United States
    • Appellate Court of Connecticut
    • December 26, 2000
    ...which it is returnable...." (Emphasis added.) Practice Book § 8-1 (a); see also General Statutes § 52-45a; Stewart-Brownstein v. Casey, 53 Conn. App. 84, 87, 728 A.2d 1130 (1999). "The writ in order to be `due process of law' must be signed by ... a ... commissioner of the Superior Court.........
  • Gianquitti v. Sheppard, (AC 17769)
    • United States
    • Appellate Court of Connecticut
    • April 27, 1999
    ...appeal unless the trial court has abused its discretion. Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982)." (Internal quotation 53 Conn. App. 84 marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 77-78, 689 A.2d 1097 Here, in its memorandum of decision, the trial court note......
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