John Mitrano v. Carol Consiglio (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (# 103)

I. INTRODUCTION

The defendant, Carol Consiglio, has filed the motion to dismiss that is now pending before the court.   For the reasons that follow, the motion to dismiss is denied.   The plaintiff is permitted to amend and provide a legal recognizance.

II. FACTS

On February 6, 2013, the self-represented plaintiff, John Mitrano, filed a complaint for breach of contract against the defendant, Carol M. Consiglio.   The plaintiff alleges the following facts.   In August of 2010, the plaintiff loaned the defendant $20,500 subject to 10% interest.   After repeated demands, the defendant made one partial payment of $1,300 in April of 2011.   Consequently, the defendant owes the plaintiff a balance of $19,200 on the principal loan amount.

On March 5, 2013, the defendant filed the instant motion to dismiss.   The plaintiff did not file an objection to the plaintiff's motion.   The matter was heard at the short calendar on April 1, 2013.

III. DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Narayan v. Narayan, 305 Conn. 394, 401, 46 A.3d 90 (2012).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

The defendant argues that the court should grant her motion to dismiss the plaintiff's complaint on the grounds that:  (1) the court lacks subject matter jurisdiction because a legal holiday is an improper return date and (2) the plaintiff failed to include a proper recognizance on the summons.

The plaintiff counters that the motion to dismiss should be denied because the defendant waived her objection by filing a general appearance instead of a limited appearance.   The plaintiff also argues that March 12, 2013, as the defendant claims in her memorandum, was not a holiday.   The plaintiff asks the court for ten days to amend the summons to include a legal recognizance.

Practice Book § 10–30 provides, in relevant part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance ․” (Emphasis added.)   Thus, contrary to the plaintiff's initial argument, the defendant did not waive her right to file the instant motion to dismiss after having filed a general appearance.

Turning then to the improper return date claim, “[i]t cannot be disputed that an improper return day affects the court's jurisdiction.  Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 478–79, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980).”  Brandriff v. Sellas, 40 Conn.Sup. 243, 244, 488 A.2d 853 (1985).   Thus, the court must start its analysis by noting that the failure to have a correct return date on a writ is an issue of subject-matter jurisdiction.  Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 621, 642 A.2d 1186 (1994);  Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 309–10, 763 A.2d 1055 (2001).

General Statutes § 52–48(a) provides, in relevant part:  “Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month.”  (Emphasis added.)  “The return day in any summary process action may be any week day, Monday through Saturday, except a holiday.”  (Emphasis added.)  Id. Hence, the plain meaning of § 52–48(a) clearly indicates that the return day may be any Tuesday of any month.   Although it is true that the return day may not fall on a holiday for summary process actions, there are no such rules for civil actions, as the defendant argues.   The defendant cites Brandriff v. Sellas, supra, 40 Conn.Sup. 243, to support her argument that the return day may not fall on a holiday.   Notably, however, Brandriff is a summary process suit and not a civil suit.  Id.

In the present case, the plaintiff brings a civil action to seek enforcement of a loan agreement with the defendant.   As such, whether or not the return date fell on a legal holiday, as the defendant claims, is irrelevant in the instant civil action because § 52–48(a) does not prohibit the return day from falling on a holiday.

Having addressed the defendant's first argument, the court will now analyze the defendant's contention that the plaintiff did not file a recognizance.   General Statutes § 52–185(a) provides, in relevant part:  “If the plaintiff in any civil action is not an inhabitant of this state ․ the plaintiff shall enter into a recognizance to the adverse party with a financially responsible inhabitant of this state as surety, or a financially responsible inhabitant of this state shall enter into a recognizance to the adverse party ․” “The standard civil summons form ․ plainly requires two signatures, one for the writ of summons and one for the recognizance.   The failure to affix two signatures on the form renders the writ defective.”  Sargent v. Capital Airlines, 96 Conn.App. 320, 323, 901 A.2d 55 (2006).   In the present case, the writ is defective because the self-represented plaintiff is a resident of Massachusetts and he did not file the required recognizance pursuant to § 52–185(a).

“[The appellate courts] have consistently held that our practice does not favor terminating proceedings without an examination of the merits of the controversy.”  Olympia Mortgage Corp. v. Klein, supra, 61 Conn.App. 309.   In addition, several Superior Court decisions allow the plaintiff to cure a jurisdictional deficiency even when the amendment was preceded by a motion to dismiss.   See PAS Associates v. Twin Laboratories, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99 0174428 (January 4, 2000, Mintz, J.) (after the filing of a motion to dismiss for lack of subject matter jurisdiction, the plaintiff's filing of an amended complaint pursuant to Practice Book § 10–59 was an appropriate way to correct complaint);  Vasel v. Vasel, Superior Court, judicial district of Hartford, Docket No. CV 95 0556058 (September 17, 1996, Wagner, J.) (17 Conn. L. Rptr. 548) (held that “[t]he plaintiff may cure a defect after a motion to dismiss has been filed and before the motion has been acted upon by the court ․ and such an ․ amendment is valid even though a motion to dismiss for lack of subject matter jurisdiction is pending”).

Additionally, “[t]he plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court.”   (Emphasis added.)  General Statutes § 52–128.  “The allowance of an amendment to a complaint, after the time prescribed by § 52–128 ․ has expired, rests in the sound discretion of the court.”  Cummings v. General Motors Corp., 146 Conn. 443, 449, 151 A.2d 884 (1959).

“Furthermore, our Supreme Court has held that a remedial statute such as [General Statutes] § 52–72 should be construed liberally so as not to preclude jurisdiction merely because of a defective return date.”  Olympia Mortgage Corp. v. Klein, supra, 61 Conn.App. 309.  General Statutes § 52–72(a) provides:  “Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective.”  (Emphasis added.)  “The purpose of [§ 52–72] is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction.   Those defects which are merely voidable may, in the trial court's discretion, be cured by amendment, and do not require new service and return date, so long as the defendant was not prejudiced.”  (Citation omitted.)  Hartford Nat. Bank and Trust Co. v. Tucker, supra, 178 Conn. 478–79.

Therefore, contrary to the defendant's argument, amendments to correct defects such as those presented in this case may be permitted by the court beyond the thirty day time frame.   The defendant seems to argue that Franchi v. Farmholme, Inc., 191 Conn. 201, 464 A.2d 35 (1983), suggests that any amendment must be made within thirty days of the return day.

In Franchi, the Appellate Court affirmed the trial court's decision to deny the defendant's motion to dismiss where the out-of-state plaintiffs initially failed to file the required recognizance in connection with their action.   Id., 206–08.   The court held, inter alia, that the recognizance was valid because it was filed in statutory form within thirty days of the return day.   Id., 207–08.   The case does not stand for the proposition that an amendment to include the required recognizance cannot be filed after thirty days of the return day.   To the contrary, §§ 52–72(a) and 52–128, as well as Practice Book § 8–5(b), provide the court with the discretionary authority to allow the plaintiff to file a legal recognizance more than thirty days after the return day.

Finally, “[i]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party.”  (Internal quotation marks omitted.)   New Haven v. Bonner, 272 Conn. 489, 497–98, 863 A.2d 680 (2005).   In the present case, although the plaintiff did not file a separate motion, he asked the court for ten days to correct the summons at the short calendar hearing.   Allowing the plaintiff to file the recognizance will not interfere with the defendant's rights or prejudice the defendant.   Accordingly, taking into consideration this well established policy along with the relevant rules cited above, the plaintiff is permitted to correct the summons and file a legal recognizance as required by § 52–185(a).¹

IV. CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is denied and the plaintiff is allowed to file a legal recognizance.

Mullins, J.

FOOTNOTES

FN1. Based on the language of General Statutes § 52–128, the plaintiff will be responsible for the payment of any additional costs to file the recognizance..  FN1. Based on the language of General Statutes § 52–128, the plaintiff will be responsible for the payment of any additional costs to file the recognizance.

Mullins, Raheem, J.