DocketNumber: No. CV92 030 97 00
Citation Numbers: 1995 Conn. Super. Ct. 1079-TT
Judges: HAUSER, J.
Filed Date: 2/24/1995
Status: Non-Precedential
Modified Date: 4/17/2021
BY ________________________ JOHN J. KRONDES For the Estate of James Krondes 31 Isaac Street Norwalk, CT 06850 Tel: (203) 852-0021
(The apparent signature of John J. Krondes appears on the original above his name.)
The defendant Zanesky filed a motion to dismiss claiming that the irregularities in the signing of the complaint are deficiencies that CT Page 1079-VV rise to the level of subject matter jurisdiction.
"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.'" Gurliacci v. Mayer,
To contest the court's jurisdiction, a defendant must file a motion to dismiss within 30 days of having entered a general appearance. Practice Book § 142. This was not done in this case. However, a motion to dismiss based on subject matter jurisdiction is not waived by failure to adhere to the 30 day rule (Practice Book § 145) and it is on this basis that the defendant has filed his motion to dismiss. It seems that the complaint was not signed by any of the pro se parties but rather John Krondes for the Estate of James Krondes. This plaintiffs' defect has not been remedied by a request to amend and none of the CT Page 1079-WW defendants brought the matter to the court's attention until the defendant, Zanesky, filed a motion to dismiss dated April 11, 1994 more that a year and one half after the return day and almost a year and one half after the plaintiff, Florence Krondes, claimed the case for a hearing in damages.
The court finds the case of Shokite v. Perez,
Civil actions shall be commenced by legal process consisting of a writ of summons . . . describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiff's complaint . . . and shall be signed by a commissioner of the superior court.
Section
The Shokite case is also dispositive of the defendant Zanesky's claim under Practice Book § 399 which prohibits the court clerk from filing any paper that has not been signed by counsel. Practice Book § 399 provides in in relevant part: "No pleading or paper in any case shall be filed by the clerk until it shall have been signed by counsel. . . ." Shokite (at p. 206) held § 399 to be directory and not mandatory as the obligation created by § 399 is imposed on the clerk and not on the plaintiff and because § 399 also contains no sanction for noncompliance. Under the circumstances of this case, the motion to dismiss based on failure to comply with Practice Book § 399 is denied.
This court further finds Practice Book § 119 to be directory, not mandatory.
Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name. A party who is not represented by an attorney shall sign his pleadings and other papers. The name CT Page 1079-YY of the attorney or party who signs such document shall be legibly typed or printed beneath the signature. The signing of any pleading, motion, objection or request shall constitute a certificate that the signer has read such document, that to the best of the signer's knowledge, information and a belief there is good ground to support it, and that it is not interposed for delay. Each pleading and every other court-filed document signed by an attorney or party shall set forth the signer's telephone number and mailing address.
The rules of statutory construction also apply to the Practice Book rules. Grievance Committee v. Trantolo,
It should also be noted that the Judges of the Superior Court — those who make the Practice Book rules — have n other sections expressly provided consequences for the failure to act in a timely manner. The applicable tenets of statutory construction counsel this court to ascribe significance to the absence, in Practice Book § 119, of CT Page 1079-AAA the explicit provisions for automatic consequences found in other provisions of the Practice Book. Leo Fedus Sons Construction Co. v.Zoning Board of Appeals,
In addition to the above, the court is mindful that "it is the policy of the law to bring about a trial on the merits of the dispute whenever possible and to secure for the litigant his day in court."Snow v. Calise,
The writ and summons in this case were properly executed. The CT Page 1079-BBB complaint was improperly and/or only partially signed. The defendants were fairly apprised of the plaintiffs' identity and the nature of the cause of action. The complaint was timely filed. None of the several defendants brought this issue to the courts attention until a hearing in damages loomed on the immediate horizon — some one and one-half years after service of the complaint.
The document filed with the court afforded the defendants actual notice and was in substantial compliance with statutory and court rule provisions. The defendants have not been misled or prejudiced by the irregularities with the signature on the complaint. To raise those irregularities to the level of subject matter jurisdiction is something this court is unwilling to do.
The motion to dismiss is denied.
LAWRENCE L. HAUSER
Broadriver, Inc. v. City of Stamford , 158 Conn. 522 ( 1969 )
Hartford National Bank & Trust Co. v. Tucker , 178 Conn. 472 ( 1979 )
Snow v. Calise , 174 Conn. 567 ( 1978 )
International Brotherhood of Teamsters of America v. Shapiro , 138 Conn. 57 ( 1951 )
Winslow v. Zoning Board , 143 Conn. 381 ( 1956 )
State Ex Rel. Eastern Color Printing Co. v. Jenks , 150 Conn. 444 ( 1963 )