LLC v. Barbara Garrett (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS DATED OCTOBER 27, 2011 (# 101.00)

The essential issue in this Motion to Dismiss is how to count the thirty days for filing a motion to dismiss as required by P.B. § 10–30 (“must do so by filing a motion to dismiss within thirty days of the filing of an appearance”).   There is little case law on the subject.

In general there are four ways of counting days;  (1) Count no terminal days (beginning day or ending day);  (2) Count only one terminal day;  (3) Count both terminal days;  and (4) Using one of the above methods but count only business days.   The type of counting is determined by statute, Practice Book rule and the language surrounding the mention of days in statutes, regulations, rules, contracts and case law.

(1) Count no terminal days:

A terminal day is either the first day or the last day in the counting sequence.   In zoning matters publications of notice must be made not “less than ten days ․ before the date set for the hearing.”  Gen. Stat § 8–7d(a).   “When so many days ‘at least’ are given to do an act, or ‘not less than’ so many days must intervene, both the terminal days are excluded.”  Treat v. Town Plan and Zoning Commission, 145 Conn. 136, 139 (1958).   In Treat an October 20, 1956 publication notice was held not to meet “not less than ten days” before the October 30, 1956 zoning public meeting.  “As ten full days did not intervene between the publishing of the first notice and the public hearing on October 30, 1956, the notification required by 375d was not given.”   Id.,' 188 Since both terminal days, October 20th and October 30th must be excluded, that left only nine days from October 21–29, 1956 through and including October 30, 1956 to be counted.

(2) Count only one terminal day.

Based on English common law, the most common form of counting days is to exclude one terminal day and include and count the other terminal day.   This is the method of counting unless another method is established by the statute, the partie's contract, regulations practice book rule, or some other established practice or custom.

Unless settled practice or established custom, or the intention of the parties, or the terms of a statute, have included in the computation the date or act of accrual, it is to be excluded from the computation.   This is not only our established rule, but the rule established by modern authority, applicable to all kinds of instruments, to statutes, and to rules and orders of court.   Note, 12 Amer. & Eng. Ann. Cas. p. 59;  note, Amer. & Eng. Ann. Cas.1914B, p. 1036;  38 Cyc. 317.

Austin, Nichols & Co., Inc. v. Gilman, 100 Conn. 81, 84 (1923).

This common-law rule has been adopted in our appellate practice.  “In determining the last day for filing any papers, the last day shall, and the first day shall not, be counted.”  P.B. § 63–2.

(3) Count both terminal days.

The court has not been able to locate any case or statute that requires this method of counting.   This method was incorrectly used in Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 75 (2011).

(4) Using one of the above methods but count only business days.

Some statutes require counting only business days.   For example, Gen.Stat. § 42–135a(1) on buyer's right to “cancel this transaction at any time prior to midnight of the third business day after the date of this transaction.”   Connecticut appellate procedures states:  “Time shall be counted by calendar, not working days.”  P.B. § 63–2.   Under certain state regulations Saturdays, Sundays and legal holidays are excluded from the computation of number of days.

Computation of any period of time referred to in sections 1–21j–1 to 1–21j–57, inclusive, of the regulations of Connecticut state agencies begins by first counting the day after the day on which the precipitating event occurs, and ends on the last day of the period so computed.   The last day of the period is to be included unless it is a day on which the principal office of the commission is closed, in which event the period shall run until the end of the next following business day.   If the period of time, including the intervening Saturdays, Sundays and legal holidays, is five (5) days or less, such Saturdays, Sundays and legal holidays shall be excluded from the computation;  otherwise such days shall be included in the computation.

Regulation of State Agency Sec. 1–21j–15 Computation of Time.

In addition to these four methods of counting, grace periods may apply.   At common law, when the terminal day for filing legal papers falls on a holiday or Sunday, the plaintiff was able to make performance on the following day.   Alderman Bras. Co. v. Westinghouse Air Brake Co., 91 Conn. 383, 385 (1917).   By common law when the clerk's office is closed, either the municipal clerk or court clerk, then the day is extended until the next day the clerk's office is open.  Austin, Nichols & Co., Inc., v. Gilman, supra 400 Conn. 85 Somers v. Adelman 90 Conn. 713, 714 (1916).   A number of statutes also provide for an extension of time for certain filings when the terminal day falls on a weekend or holiday.   See Brennan v. Fairfield, 255 Conn. 693, 700–01 (2001) and Taylor v. State Board of Mediation & Arbitration, 54 Conn.App. 550, 556–7 (1999);  for a listing of several such statutes.

The Practice Book has adopted this common-law grace period for the filing of trial and appellate pleadings with the court clerk.  “If the last day for filing any matter in the clerk's office falls on a day on which such office is not open as thus provided or is closed pursuant to authorization by the administrative judge in consultation with the chief court administrator or the chief court administrator due to the existence of special circumstances, then the last day for filing shall be the next business day upon which such office is open.”   P.B. § 747 “When the last day of any limitation of time for filing any paper under these rules or an order of the court falls on a day when the office of the trial court or the appellate clerk is not required to be open, the paper may be filed on the next day, when such office is required so to be open.”  P.B. § 63–2.  “If a document must be filed by a certain date under these rules or under any statutory provision, the document must be received by the appellate clerk by the close of business on that date;  it is not sufficient that a document be mailed by that date to the appellate clerk unless a rule or statutory provision expressly so computes the time.”  P.B. § 62–7.   These rules are also statutory.  “If the last day for filing any matter in the clerk's office of the Superior Court falls on a day on which such office is closed, the last day for such filing shall be the next business day.”   Gen.Stat. § 51–347c

In summary, the four ways of counting find support in our law as follows:  (1) Count no terminal days:  Treat v. Town Plan and Zoning Commission, supra, 145 Conn. 139 (“When so many days of ‘at least’ are given to do an act or ‘not less than,’ so many days must intervene, both terminal days are excluded;” (2) Count only one terminal day;  the most common form of counting in effect for centuries.  Austin, Nichols & Co., Inc. v. Gilman, supra, 100 Conn. 84;  (3) Count both terminal days.   This is usually based on the language of a partie's contract.   No statute or Practice Book rule requires this method of counting;  and (4) Using one of the above methods but count only business days.   Various statutes and regulations require this method of counting.   In addition to those four methods of counting, in some cases, extensions of a day or days are permitted when the last terminal day falls on a non-business day.

The issue here is whether the defendant's Motion to Dismiss was timely when it was filed on October 27, 2011 and the defendant's appearance was dated September 26, 2011.   If both terminal days are excluded, the first day of September 26, 2011 and the last day of October 27, 2011, then exactly thirty days intervene and the defendant's motion was filed “within thirty days.”   If one or both terminal days are included, then the motion to dismiss was untimely.   The motion to dismiss alleges insufficiency of service of process and thus does not allege lack of subject matter jurisdiction.  “Any claim of lack of jurisdiction ․ insufficiency of service of process is waived if not raised by a motion to dismiss filed ․ within the time provided by Section 10–30.”  P.B. § 10–32.   Subject matter jurisdiction can be raised at any time and such a deficiency is not bound by the thirty-day rule.  P.B. § 10–33.

Which of these methods apply when the phrase is “within thirty days?”   Four cases have discussed the method of counting when “within” has been the operative word.  Avery v. Stewart, 2 Conn. 69, 72, 76 (1816);  (note payable within sixty days);  Weeks v. Hull, 19 Conn. 376, 377–78 (1849);  (attachment to occur within ten days from issuance of writ);  Lohnes v. Hospital of Saint Raphael, 132 Conn.App. 68, 75 (2011) (within thirty days to file a motion to dismiss as required by P.B. § 10–30.);   and Lamberti v. Stamford, 131 Conn. 396 (1944) These four cases are not models of consistency.  “Hitherto, there has been considerable uncertainty and confusion as to the manner of computing time.”  Weeks v. Hull, supra, 19 Conn. 380.   The municipal defective road statute requiring notice “within ten days thereafter” was at issue in Lamberti v. Stamford, 131 Conn. 391, 396 (1944).   The plaintiff claimed that “thereafter” required that both terminal days be excluded.   Although the decision turned on a legal holiday issue, the court did note the following:  “The authorities are in conflict concerning the exclusion of the last terminal day, but the reasons for the divergent decisions are the varied circumstances of the cases and the differences in the language of the statutes under consideration.”  Id., 396 and “The word ‘within’ is almost universally used as a word of limitation, unless there are other controlling words in the context showing a different meaning was intended.”   Id., 396.

In Lohnes the defendant, hospital, filed a motion to dismiss the plaintiff's malpractice complaint for failure to comply with the similar health care provider requirements of Gen.Stat. § 52–190a.   The Supreme Court recently held that the failure to submit a proper written opinion from a similar health care provider pursuant to Gen.Stat. § 52–190a constitutes insufficient service of process and the motion to dismiss addressed to that failure must be filed within thirty days as required by P.B. § 10–30.   Morgan v. Hartford Hospital, 301 Conn. 388, 402 (2011).   The Appellate Court in Lohnes concluded that the defendant's motion to dismiss was timely.   The court found that September 22, 2009 was the date the defendant's appearance was filed, based on the unique facts presented.  “Thus, in the present case, Verghese had thirty days from September 22, 2009, which would have been October 23, 2009, to file his motion to dismiss.   Verghese filed his motion to dismiss on October 21, 2009, and therefore his motion was timely.”  Id., 75.

This court agrees that by applying the common-law method of counting and using a September 22, 2009 date, the filing of a motion to dismiss on October 21, 2009 was “within thirty days.”   One of the terminal days would be excluded.   None of the days in question was a weekend or legal holiday.   September 22, 2009 was a Tuesday and October 21, 2009 was a Wednesday.   Excluding September 22, 2009, the first terminal day, the remaining days must be counted.   Counting the days September 23, 2009 through and including October 21, 2009, the number of days are twenty-nine.   Twenty-nine days is “within thirty days.”

But the Lohnes court found that a motion to dismiss filed on Friday, October 23, 2009 would be “within thirty days.”   Excluding September 22, 2009, the first terminal day, and counting each of the remaining days of September 23, 2009 through and including October 23, 2009, the number of days is thirty-one.   Thirty-one days is not “within thirty days.”

The question is has Lohnes changed the most common form of counting, the exclusion of one terminal day, and substituting the Treat standard, that both terminal days must be excluded sub silento?   Using September 22, 2009 through and including October 23, 2009 the only way thirty days can be counted is if both terminal days are excluded.   Excluding September 22, 2009 and excluding October 23, 2009, the two terminal days, leaves the remaining days of September 23, 2009 through and including October 22, 2009 to be counted.   The number of those days is thirty.   Thirty days is “within thirty days.”   Lohnes did not cite Treat v. Town Plan and Zoning Commission nor did the Lohnes opinion discuss how the counting conclusion was reached.  Id., 75 In an attempt to resolve this problem, the court will examine two Supreme Court cases in which the method of counting was also not discussed in the opinion.

Ann Howard's Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209, 221 (1996) discussed Gen.Stat. § 4–183(c)(1) which states:  “Within forty-five days after mailing of the final decision under section 4–180 ․ a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office ․” The trial court held on this appeal from a decision of the Commission Human Rights and Opportunity that the final decision was mailed on September 27, 1993 and the plaintiff filed his appeal on November 12, 1993.   The finding that the plaintiff's appeal was timely was upheld on appeal.  Id., 221.  “The plaintiff's appeal was actually filed forty-six days after September 27.   Because the forty-fifth day was a holiday and the Superior Court clerk's office was closed, the deadline for filing its appeal was extended to the next business day.   See General Statutes § 51–347c.”   Id., 221, fn.8 The Supreme Court must have excluded one terminal date and included the other terminal day in arriving at this conclusion.   The opinion is silent on the method of counting used.   If the first terminal day of September 27, 1993 is excluded and the last terminal day of November 12, 1993 is included and counted, the actual number of days from September 28, 1993 through and including November 12, 1993 is forty-six days.   Since the forty-fifth day fell on November 11, 1993, Veteran's Day a legal holiday, Gen.Stat. § 51–347c permits the filing with the clerk on the next business day November 12, 1993.   Thus the Supreme Court counted “within forty-five days” by excluding one terminal day and including the other terminal day.  Id., 221.

Brennan v. Fairfield, supra, 255 Conn. 698 (Gen.Stat. § 13a–149 requires a notice of a defective road to be given “within ninety days”).  Brennan dealt with the situation of the ninetieth day falling on a day when the town clerk's office was closed.   The Brennan court found that the plaintiff's notice delivered to the town clerk on the next business day, the ninety-second day was “ within ninety days.”   The town clerk's office was closed on the ninetieth and ninety-first day, Saturday, March 19, 1994 and Sunday, March 20, 1994.   The methodology of counting the number of days “within ninety” days was not discussed.   Plaintiff's alleged injuries occurred on Sunday, December 19, 1993 and the plaintiff gave notice to the Town Clerk under Gen.Stat. § 13–149 on March 21, 1994, a Monday.   The court referred to Monday, March 21, 1994 as the ninety-second day.

If the common-law counting method was used in Brennan, the first terminal day of Sunday, December 19, 1993 would be excluded and the last terminal day of Monday, March 21, 1994 would be included and counted to get to ninety-two days (or the last terminal date of Saturday, March 19, 1994 included to get to ninety days).   Counting Monday, December 20, 1993 through and including Saturday, March 19, 1994, including February 28, 1994, the result is ninety days.   Ninety days is “within ninety days.” 1994 was not a leap year.   The Court therefore must have excluded one terminal day and included and counted the other terminal day in determining that the number of days “were within ninety days.”

“Within” is not defined by statute.  Gen.Stat. § 1–1 et seq.  “Within” is defined as “inside a period of time” in the McMillan Dictionary.   Examples of that definition in McMillan state:  “before the end of a period of time,” “during a particular period of time” and “used for saying how soon one thing happens after another.”   None of these definitions add clarity to how one counts the days in the phrase “within thirty days.”   These three subdefinitions uses the words:  “before,” “during” and “after,” all of which by themselves designate different periods of time.

Even Biblical counting contains vagueness:  “15.   And ye shall count unto you from the morrow after the day of rest, from the day that ye brought the omer of the waving;  seven weeks shall there be complete;  16. even unto the morrow after the seventh week shall ye number fifty days;  and ye shall present a new meal-offering unto the LORD.” Leviticus 23:15–16.   Does the phrase “after the seventh week shall ye number fifty days,” mean forty-nine days or fifty days?   Tradition counts forty-nine days between Passover and Shavuot.   Sefirat Ha‘omer.

Due to the conflicting nature of our appellate courts on counting “within” and the lack of clarity in dictionary and biblical definitions, the court finds that the application of the century old customary method of counting should be followed in all “within” cases.   Thus “within thirty days” is counted by excluding one terminal day and including and counting the other terminal day.   Austin, Nichols & Co., Inc. v. Gilman, supra, 100 Conn. 84.

In the instant case excluding the first terminal day of September 26, 2001, the date of the defendant's appearance, and including and counting the last terminal day of October 27, 2011, the date of the defendant's Motion to Dismiss, thirty-one days have elapsed.   The defendant's Motion to Dismiss was not filed “within thirty days” of her appearance.  P.B. § 10–30.   The defendant has not alleged lack of subject matter jurisdiction in her Motion to Dismiss.   The defendant, by filing an untimely Motion to Dismiss, has waived her claim of insufficiency of service of process.  P.B. § 10–32.

The defendant's Motion to Dismiss dated October 27, 2011 (# 101.00) is denied.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.