LVNV LLC v. Eva Savvidis (2013)

MEMORANDUM OF DECISION

Pursuant to Practice Book § 10–31, defendant Eva Savvidis has moved to dismiss the action, based on the claim that plaintiff has failed to comply with General Statutes § 52–48(b).  In particular, defendant claims that the date of the process is September 1, 2011 and the return day is November 8, 2011 such that plaintiff has failed to comply with the requirement that process be made returnable not later than two months after the date of the process.

Plaintiff has filed an objection to the motion.   In the objection, plaintiff notes that the September 1, 2011 date relied upon by defendant is only on the complaint and typed (computer-printed), whereas on the summons form—Form JD–CV–1—the date used is September 12, 2011 and appears to have been handwritten in ink.   If September 12, 2011 is the operative date of process, then there is no violation of the two-month limit set forth in § 52–48(b).

In the memorandum in support of the motion, defendant refers to the summons—attached as Exhibit B to the motion—but only for the purpose of identifying the return date;  defendant's papers are “silent” as to the existence or significance of the September 12, 2011 date that also appears on that document.

The parties waived argument.

Discussion

Section 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.

General Statutes § 52–45a provides:

Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.   The writ shall be accompanied by the plaintiff's complaint ․

Somewhat similarly, Practice Book § 8–1 provides:

(a) Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint.   Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.   Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with the following judicial branch forms prescribed by the chief court administrator:  ․ Form JD–CV–1 in other civil actions ․

Under both the statute and the rule, the legal process for starting an action consists of the “writ of summons,” which shall be “accompanied by the plaintiff's complaint.”   While the summons—here, Form JD–CV–1—is required to contain information as to the parties, return date, etc., the complaint's contents are governed by Practice Book § 10–20, which is silent on such subjects.

Despite defendant's reliance on the date appearing on the complaint, the complaint is not intended to be the source of the information relevant to the inquiry here.   If there is any inconsistency or conflict, the information on Form JD–CV–1 takes precedence.   In fact, there is another similar instance in this case:  the first page of the complaint (Exhibit A to defendant's motion) includes a place in the upper left corner for the return date, but the date was left blank by plaintiff.   Does that mean that it could be argued that the process failed to have a return date, or should the court look to JD–CV–1 for that information—as defendant actually does (in referring to Exhibit B to the motion) for that information?

This is consistent with the mandate for practical and common-sense reading of pleadings, and the policy of having disputes resolved based on the merits rather than technicalities;  Coppola v. Coppola, 243 Conn. 657, 664–65 (1998);  Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111 (1974).   Further, this is also consistent with the principle that in situations involving conflicts between printed or typed entries, and handwritten entries, the latter should prevail.   See, e.g. § 42a–3–114 (“If an instrument contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers”).

As noted, neither party requested argument.   Neither party has suggested that resolution of this issue involves a credibility determination that might necessitate an evidentiary hearing, cf.  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56 (1983).

Accordingly, defendant's motion is denied.

BY THE COURT

POVODATOR, J.

Povodator, Kenneth B., J.