Pitchell v. City of Hartford

LAVERY, J.,

dissenting. I disagree with the majority’s failure to find that the filing of an appearance by the law firm of Halloran & Sage on behalf of the defendant Gregory Sargis and Sargis’ failure to file a motion to dismiss for insufficiency of service within thirty days of the filing of the law firm’s appearance constituted a waiver of the claim that service of process was insufficient.

Practice Book § 142 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so . . . but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”

*809Practice Book § 144 provides in relevant part: “Any claim of . . . insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss . . . within the time provided by Sec. 142.”

The return day in this case was June 28, 1994. The law firm of Halloran & Sage filed an appearance on June 28, 1994. On October 27, 1994, the plaintiff filed a motion for default against Sargis for failure to appear that was denied because Halloran & Sage had filed an appearance.

On November 9,1994, Halloran & Sage filed a motion to withdraw that was granted on November 21, 1994. On May 10, 1996, Sargis filed the motion to dismiss that is the subject of this appeal. On June 12, 1996, the plaintiff objected to the motion to dismiss giving as one of his reasons: “The defendant Sargis waived, through his attorney, Halloran & Sage, any defects in service of process.” The trial court granted the motion to dismiss on the basis of insufficiency of service of process. All of those facts are in the record.

Because Sargis, through his attorneys, filed no motion to dismiss within the thirty days of their filing of their appearance, there was a waiver of the insufficiency of process claim. This court held in Pickett v. T.A.C. Collections, Inc., 31 Conn. App. 909, 909-10, 625 A.2d 845 (1993), the following: “The record shows that the defendant’s appearance was filed on February 19,1992, and the motion to dismiss was filed on March 31, 1992. The motion to dismiss was filed more than thirty days after the filing of the defendant’s appearance. Under Practice Book §§ 142 and 144, the objection to personal jurisdiction is waived if a motion to dismiss is not filed within thirty days of the filing of an appearance.” The trial court should not have granted the motion to dismiss.

*810I agree with the majority that the motion to open granted by the trial court should be affirmed.

I would reverse the granting of the motion to dismiss and remand the case to the trial court with direction to deny the motion to dismiss and to proceed in accordance with the law.