Christina A. Zorn v. Old Danbury Donuts, Inc. (2013)

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

This is an action sounding in negligence and certain violations of § 42–110b, C.G.S., the Connecticut Unfair Trade Practices Act (CUTPA).   The plaintiff alleges that she sustained serious personal injuries and other losses when she, as a customer, was burned or scalded by a cup of hot coffee she had been handed by an employee of the defendant's restaurant.

The defendant has moved to dismiss this case for the reason that after making service upon the defendant of the complaint on December 26, 2012, the plaintiff failed to make timely return of the complaint to court at least six days before the return date as required by § 52–46(a), C.G.S. The return date was January 15, 2013, and the writ was not returned until February 21, 2013.

The plaintiff has filed a request to amend the return date to March 5, 2013.   The defendant has filed an objection to such amendment by the plaintiff.

The defendant argues that any attempt by the plaintiff to cure the late return, by amendment of the return date is prohibited by § 52–48(b), C.G.S., which provides, in relevant part:  “All process shall be made returnable not later than two months after the date of the process ․” In this case, the plaintiff returned the process to court on February 21, 2013.   According to the defendant, to comply with that statute, the earliest possible return date would be March 5, 2013, which is more than two months after the date of service.   The defendant argues that as a result of those facts, the court lacks the requisite subject matter jurisdiction to hear and decide this case.

“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.”  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213 (2009).

“In ruling upon whether a complaint survives a motion to dismiss, 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.”  Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611 (2002).

The plaintiff maintains that there is appellate case law that permits an amendment of the return date pursuant to § 52–72, C.G.S. to cure the defect caused by the late filing.   The operative language in that statute being, 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.   (Emphasis added.)

Both parties cite Coppola v. Coppola, 243 Conn. 657 (1998), as authority for their respective although polar opposite claims regarding the attempt to amend the return date.

In Coppola, the Supreme Court reversed the lower court's ruling that § 52–72, C.G.S. could not be used to amend a return date.   The court went on to hold that, “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 ‘all 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.”  Coppola, supra, 666–67.   The defendant relies on that holding to support its motion to dismiss as well as its objection to the plaintiff's request to revise the return date.

The plaintiff points out that the only question certified to the Supreme Court in Coppola was whether or not § 52–72 C.G.S. could be used to amend a return date.   The Supreme Court was not asked to decide whether such amendment would be allowed more than two months after the date of the process as required by § 52–48(b).  It is the plaintiff's contention that the Supreme Court's statement concerning § 52–48(b) was a gratuitous statement and not precedent binding on other courts.

In addressing that issue in America Online, Inc. v. Gavin, Superior Court Tax Session, judicial district of Hartford/New Britain at Hartford, Docket No. CV 97 0571869 (Nov. 4, 1998, Aronson, J.T.R.), the court held that the comments in Coppola regarding § 52–48(b) were “dicta” and that “the dispositive issue in Coppola, which was ‘whether, pursuant to General Statutes § 52–72 the return date of civil process can be amended to correct the plaintiff's failure to return the process at least six days before the return date as required by General Statutes § 52–46(a).’  “ In that case, the court denied the motion to dismiss and allowed the amendment to the return date notwithstanding the fact that the amended return date made the process returnable later than two months after the date of process.

In Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 309 (2001), the court held that:  “Although § 52–48 sets forth a two month time limitation for return of process, the legislature, by enacting § 52–72, clearly provided parties an avenue to correct a procedural error concerning such process.”   That court went on to cite a number of cases in which the court allowed such an amendment to the return date and noted, “None of [those] cases specifically restricted the right to amend the return date to cases in which the original return date was within the required two month time limitation.”  Id.

Our courts have consistently held that the design of the rules of practice is to facilitate justice and they should be interpreted liberally to avoid a termination of the proceedings without a determination of the merits of the controversy.   In this case, where the defendant was properly served and there is no surprise or prejudice, the court grants the motion to amend the return date and denies the motion to dismiss for the reasons stated above.

BY THE COURT

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.