LaRosa v. Lupoli

688 A.2d 356, 44 Conn. App. 225, 1997 Conn. App. LEXIS 41

• Court: Connecticut Appellate Court
• Decided: February 11, 1997
• Docket: 15829
• Status: Published

Opinions

SCHALLER, J.

The plaintiffs, Carol LaRosa and Thomas LaRosa, appeal from the judgment of the trial court dismissing their complaint against the minor defendant, John Lupoli.¹ The plaintiffs claim that the trial court improperly determined that the Superior Court lacked jurisdiction over the minor defendant because the complaint was brought only against him and process was served on him individually rather than on his parent or next friend. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. On May 6, 1995, the plaintiff Carol LaRosa was a spectator at a Little League baseball game in Wallingford. Prior to the game, the defendant, then eight years old, was warming up to pitch. One of his warm-up pitches struck Carol LaRosa in the face. As a result of the incident, Carol LaRosa and Thomas LaRosa brought an action against Lupoli claiming damages for negligence and loss of consortium, respectively. The complaint named Lupoli individually as the sole defendant and he was served by means of abode service. The complaint did not name a parent or next friend for the minor defendant, nor was the process served on anyone other than Lupoli. Counsel filed a timely appearance on behalf of Lupoli. Lupoli filed a motion to dismiss asserting that the failure to bring the minor “before the court through his parent or next friend” and the failure “to make service upon the defendant minor through his parent or next friend” renders the action fatally defective. The defendant did not claim a lack of adequate notice or that he suffered any prejudice as a result of the abode service. The trial court granted the motion to dismiss and rendered judgment in favor of the defendant.

On appeal, the plaintiffs claim that the trial court improperly granted the motion to dismiss because the trial court acquired jurisdiction over the minor defendant despite the fact that the action was not brought against the minor by service on a parent or next friend. The plaintiffs argue that we decided the precise issue presented in this appeal in Tax Collector v. Miley, 34 Conn. App. 634, 641, 642 A.2d 747 (1994). The defendant does not dispute that Miley is dispositive but asserts that Miley should be overruled as being inconsistent with the public policy of our state, which dictates that the welfare of minors should be protected in court matters. The defendant argues that, for example, a minor should not be the object of direct service of process by a sheriff but that such service should be effected by service on a parent or next friend. The defendant argues that the same reasons that require a minor to bring an action through a parent or next friend should require that an action be brought against a minor only through a parent or next friend.²

Our decision in Miley, which is controlling, is consistent with the statutory law of our state governing service of process as provided by General Statutes 52-57.³ We regard that statute as embodying the public policy of our state pertaining to service on minors. In Miley, we held as follows: “In a civil action, General Statutes, § 52-57 requires service on an individual ‘by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.’ (Emphasis added.) There is no requirement, whatsoever, that service be on the parent or guardian of a defendant who is a minor. The service is made in the usual way as though the defendant were of majority. E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 26 (j). Thus, there is no requirement for service on a parent or guardian in Connecticut when the defendant is a minor. Further, the defendants do not claim that they did not receive adequate notice of the action. They did not indicate any defense that they were deprived of asserting or claim any prejudice from the type of service effected. Therefore, the service on the defendants was proper and the defendants were not deprived of due process of law.” Tax Collector v. Miley, supra, 34 Conn. App. 641.

The judgment is reversed and the case is remanded to the trial court with direction to deny the defendant’s motion to dismiss and for further proceedings.

In this opinion FOTI, LAVERY, LANDAU, HEIMAN and SPEAR, Js., concurred.

1 After the defendant’s motion to dismiss was granted, the plaintiffs filed a motion to reargue, which the trial court denied.

2 We note that General Statutes § 45a-132 provides for the appointment of a guardian ad litem for a minor in any proceeding before the Superior Court.

3 Apart from the requirements of General Statutes § 52-57, which Miley precisely carries out, we note that innumerable practical difficulties would result from a requirement that a plaintiff must determine what adult should be served in a given situation in order to effectuate service on a minor.