Sharon Marshall v. Richard Slappy (2011)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The defendant moves to dismiss this action on the ground that the return of process was not made at least six days before the return date, as required by General Statutes § 52–46a.

Section 52–46a provides:  “Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.”   The date of the process in this case is December 14, 2009.   The return date was February 9, 2010.   The complaint was filed in court on March 11, 2010.   The plaintiff argues that General Statutes § 52–72 prevents the dismissal of an action for technical defects such as the requirement of § 52–46a that process be returned to the clerk at least six days before the return date.

Section 52–72 provides in relevant part:  “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement. (b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.

“[T]he purpose of § 52–72 is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction ․ The apparent intent of the legislature in enacting § 52–72 was to prevent the loss of jurisdiction merely because of a defective return date.”  Concept Associates, Ltd v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994).

It is true that § 52–72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit.   The trial court should make every effort to adjudicate the substantive controversy before it and, when practicable should decide a procedural issue so as not to preclude hearing the merits of an appeal.  Fedus v. Planning & Zoning Commission, 278 Conn. 751, 769–70, 900 A.2d 1 (2006).   Accordingly, plaintiff opposes the defendant's motion to dismiss and seeks leave to amend the return date, filed March 12, 2010.

However, § 52–48(b) provides:  “All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”   Defendant argues that since the current return date, February 9, 2010, is two months after the date of process, an amendment to any later date in excess of the two-month limitation is not permitted.   The defendant's objection to the proposed amendment was sustained by Judge Scholl on April 6, 2010, in effect denying the plaintiff the opportunity to amend the return date.

Our Supreme Court has said that “the requirement of § 52–46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement ․ [O]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period.”  Coppola v. Coppola, supra, 243 Conn. 661–62.   The Court stated:  “Allowing an amendment of the return date under the circumstances of the present case does not render § 52–46a meaningless.   A return date may be amended but it still must comply with the time limitations set forth in § 52–48(b).  Section 52–48(b) requires that ‘[a]ll process shall be made returnable not later than two months after the date of the process ․’ Section 52–48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended.”   Supra, 666–67.

The circumstances of the present case are identical to the situation contemplated by the Supreme Court in establishing a limitation on amendments to return dates.   Without even considering that the plaintiff's request for leave to amend has been denied, allowing the plaintiff to amend the return date under § 52–72, to minimally meet the six-day requirement of § 52–46a, would cause the return date to be extended in violation of the two-month limitation of § 52–48(b).  Such permission would violate the explicit restriction in Coppola.

Defendant's motion to dismiss is granted.

Wagner, J., JTR

Note:  This decision was delayed because the file was mislaid.

Wagner, Jerry, J.T.R.