LLC v. West Haven Lumber, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 110) AND OBJECTION (# 112)

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, Seven Hundred Sixty–Four Quinnipiac Avenue, LLC (plaintiff) commenced this action by writ summons and complaint on July 25, 2012 according to the Marshall's return of service.¹  The Marshall's return of service states that the defendant, West Haven Lumber, Inc.'s (defendant), agent for service was served by way of abode service on July 25, 2012.   The return date is August 7, 2012 and process was returned to court on July 31, 2012, more than six days before the return date.   The defendant filed an appearance in this case on August 7, 2012.   On August 20, 2012, the defendant filed a motion to dismiss on grounds that the plaintiff served process on the defendant less than twelve days before the return date in violation of General Statutes § 52–46.   The defendant filed an affidavit of its designated agent for service, James Shanbron.   Mr. Shanbron attests that he did not receive service until August 1, 2012.   Thus, the defendant claimed that the plaintiff's service of process was insufficient because it was served less than twelve days before the return date.

The defendant acknowledged in its motion to dismiss that process was returned to court more than six days before the return date, and therefore process was properly returned to court.   The defendant further argued in its motion to dismiss that General Statutes § 52–72(a) does not apply because the return date is not defective, but rather, the plaintiff failed to serve the defendant within the time prescribed in § 52–46, which cannot be cured by way of amendment.

The plaintiff filed an objection to the defendant's motion to dismiss and a motion to amend the return date to August 21, 2012, on November 8, 2012, three months after the defendant filed its motion to dismiss and almost four months after the date of process.   The plaintiff did not attach a proposed amended return to his objection or to his motion to amend.   However, the plaintiff attached a copy of the Marshal's return and an affidavit of the Marshal in which he attests that pursuant to General Statutes § 52–593(a), the writ, summons and complaint were personally delivered to him on “July 10, 2010” and was served by him within thirty days of such delivery in accordance with § 52–593(a).   The plaintiff argued in its objection to the motion to dismiss that § 52–72(a) was applicable and it should be allowed to amend the return date to cure the defect in the return.   The plaintiff cited to Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), in support of its position that § 52–72(a) applies and that it should be allowed to amend the return.

On January 25, 2013, the defendant filed an objection to the motion to amend the return date.   The defendant argued that at the time the plaintiff filed his motion to amend the court was without jurisdiction because the plaintiff did not properly serve the defendant in accordance with § 52–46, and therefore the plaintiff's motion to amend should be denied.   On January 29, 2013, the court, (Fischer, J.), denied the plaintiff's motion to amend.   On February 15, 2013, the plaintiff filed a motion to reargue and for clarification, requesting the court to clarify its ruling in light of Coppola v. Coppola, supra.   In addition, the plaintiff requested an articulation of the court's ruling.   The court, (Fischer, J.), scheduled the motion to reargue and the plaintiff's motion to amend for oral argument on March 25, 2013.   The court heard argument on the plaintiff's motion to amend and the defendant's objection on March 25, 2013, and on March 26, 2013, the court granted the plaintiff's motion to amend citing Coppola v. Coppola, supra.

On April 24, 2013, the plaintiff filed an amended writ and summons.   The amended summons has a return date of “August 21, 2013” not “August 21, 2012” as the plaintiff previously requested in his November 8, 2012, motion to amend, which as the court previously noted, did not contain a proposed amended summons.

On May 22, 2013, the defendant filed a second motion to dismiss.   In its second motion to dismiss, the defendant does not raise the argument that he raised in the initial motion to dismiss, that service was made on the defendant less than twelve days before the return day, but rather, the plaintiff's amendment of the return date states “August 21, 2013” and not “August 21, 2012,” which is not a Tuesday in accordance with § 52–48(a), and that the plaintiff's amended service violates § 52–48(b) because service was made returnable more than two months after the date of process.   The date of process is July 6, 2012.   The plaintiff did not file an amended summons until April 24, 2013.   In addition, the defendant argues that the amended process is insufficient because it violates § 52–72(b) because the amended return was not properly served on the defendant, but rather mailed to the defendant.

On June 28, 2013, the plaintiff filed an objection to the defendant's motion to dismiss.   The plaintiff argues that the defendant waived his right to file a motion to dismiss because the motion to dismiss was filed more than thirty days after the defendant filed an appearance.   The plaintiff further argues that the “August 21, 2013” is a scrivener's error and it should be allowed to amend the summons in accordance with § 52–72(a) and Coppola v. Coppola, supra.   The court heard oral argument on August 5, 2013.   The court rescheduled the matter for further oral argument on August 19, 2013, to allow the parties to file supplemental briefs on issues and legal precedent raised during oral argument.

DISCUSSION

“A motion to dismiss ․ properly attacks 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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Cox v. Aiken, 278 Conn. 204, 210–11, 897 A.2d 71 (2006);  see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005);  Filippi v. Sullivan, 273 Conn. 1, 866 A.2d 599 (2005).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court ․ Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Emphasis in original;  internal quotation marks omitted.)   Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).

The plaintiff argues that the defendant waived personal jurisdiction because its May 22, 2013, motion to dismiss was filed more than thirty days after the defendant filed its appearance.   However, the defendant filed a timely motion to dismiss on August 20, 2013, thirteen days after filing its appearance.   The defendant's motion to dismiss was never acted on, but rather the court granted the plaintiff's motion to amend the summons.

The question for this court to determine therefore, is whether the court, (Fischer, J.), had personal jurisdiction over the defendant when it granted the plaintiff's motion to amend on March 26, 2013.   If the court lacked personal jurisdiction, then the court should not have ruled on the plaintiff's motion to amend.

In the defendant's initial motion to dismiss, it argued that service of process was defective because the defendant was not served with process within twelve days before the return date as required by General Statutes § 52–46.  “[O]ur Supreme Court [has] held that the requirements in this statute ․ are mandatory.”  Vierra v. Uniroyal, Inc., 28 Conn.Sup. 489, 492, 266 A.2d 900 (1970), citing Daley v. Board of Police Commissioner, 133 Conn. 716, 719, 54 A.2d 501 (1947).  “Proper service of process is not some mere technicality.   Proper service of process gives a court power to render a judgment which will satisfy due process under the 14th amendment of the federal constitution and equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the full faith and credit clause of the federal constitution ․ All process must be served at least twelve days before the return date, including the day of service and excluding the return day.  General Statutes § 52–46.”  (Citation omitted;  internal quotation marks omitted.)  Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003).

In the present case, the return date on the summons is August 7, 2012.   The Marshall's return of service states that abode service was made on the defendant's agent for service on July 25, 2012.   In support of its original motion to dismiss, the defendant submitted an affidavit from its agent for service stating that he did not receive service until August 1, 2012 which is less than twelve days before the return date.

“If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.”  Columbia Air Services v. Dept. Of Transportation, 293 Conn. 342, 348, 977 A.2d 636 (2009).

In the present case, the defendant submitted an affidavit of the defendant's agent for service, James Shanbron in support of its motion to dismiss.   Shanbron attests that “[a] copy of the writ, summons and complaint in the [present] action was served upon West Haven Lumber, Inc. by leaving a copy of same at my usual place of abode on or about August 1, 2012 ․ The Return of Service filed by State Marshall Andrew Espositio, III, which indicates that service of process was made at my usual place of abode on July 25, 2012, is inaccurate and incorrect.”  (Defendant's Exhibit B to Defendant's August 20, 2013 Motion to Dismiss).   Based on the affidavit submitted by the defendant in support of its motion to dismiss, it would appear that jurisdiction is conclusively lacking as service was made on the defendant less than twelve days of the return of service in violation of § 52–46.   The plaintiff did not submit any counter-affidavits with his objection to undermine this conclusion.   The question therefore, is, whether § 52–72(a) allows the amendment of the return day where process was served less than twelve days from the return date.  General Statutes § 52–72(a) provides in relevant part:  “Amendment of process. (a) Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective. (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.”

Connecticut General Statutes § 52–46 provides, in relevant part that “civil process ․ if returnable to the superior court, [shall be served] at least twelve days, inclusive, before [the] day [of the sitting of the court].”  “All process must be served at least twelve days before the return date, including the day of service and excluding the return day.”  Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003).

As the court previously noted, the plaintiff, when it filed its motion to amend on November 8, 2012, and the court, (Fischer, J.), when granting the plaintiff's motion to amend, relied on Coppola v. Coppola, supra to support the position that the plaintiff should be allowed to amend the summons to comply with § 52–46.   However, the facts of Coppola are distinguishable from the present case.

In Coppola, our Supreme Court was faced with the question of whether § 52–72 allowed a plaintiff to file an amendment to revise a late return date, in order to satisfy the six-day requirement of § 52–46a.   Before deciding that issue, the court noted 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 proceedings voidable, rather than void, and subject to abatement.”   (Emphasis added.)  Id., 661–62.   The Court then began its analysis of § 52–72 by reiterating its statutory interpretation of § 52–72, stating that “the 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.”  Id., 663–64.

The Court went on to state that § 52–72 “is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit ․ [S]tatutes such as § 52–72 were intended to take the sharp edges off the common law ․ Centuries ago the common-law courts of England ․ insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits.   Some of that ancient jurisprudence migrated to this country ․ and has affected the development of procedural law in this state ․ [H]owever, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw ․ The legislature, in enacting § 52–72, expressed an intent to reject the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date.   The principles of statutory construction ․ require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results ․ The construction of the term defective to permit an amendment of the return date to correct the plaintiff's failure to return process six days prior to the return day effectuates the statute's remedial purpose and statutory policy of amend [ing] ․ otherwise incurable defects that go to the court's jurisdiction.   (Citations omitted;  internal quotations marks omitted.)”  Id., 664–65.   The Court found that “[t]he plaintiff's motion to amend would not deprive the defendant of any substantive rights and would simply correct the return date so that the return of process met the statutory six-day period required by § 52–46a.”  Id., 665.

Several trial courts in our state have subsequently followed the Coppola court's interpretation of § 52–72, and some have extended its holding to § 52–46 defects such as in the present case.   In Dinatale v. Blue Trail Range Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 08 4031580 (July 23, 2008, Silbert, J.) [45 Conn. L. Rptr. 829], the plaintiffs provided a return date of June 24, 2008 and service was not made on the defendants until June 22, 2008.   The plaintiffs acknowledged their original complaint failed to comply with § 52–46, but filed and served an amendment which changed the return date to July 15, 2008.   The plaintiffs contended that because they had filed the amendment within the first thirty days after the original June 24, 2008, return day, they were merely amending a “defect, mistake or informality in the writ, complaint or petition” as was their right under Practice Book § 10–59 and General Statutes § 52–72.

Relying on Coppola, as well as its finding that the defective return date and its subsequent amendment would not deprive the defendant of any substantive rights, the court found that the defect sought to be cured by the plaintiffs' amendment was encompassed by § 52–72, and thus the defendants' motion to dismiss should be denied.   The court further noted that “[o]ther than having been inconvenienced by having to bring this claim of lack of personal jurisdiction to the court's attention, the defendants have not claimed that the defective return day and its subsequent amendment have deprived it of any substantive rights.   It is also undisputed that the defendants received actual notice of the cause of action and suffered no prejudice as a result of the late service.”  Id.

In the present case, at the time the defendant filed its motion to dismiss on August 7, 2013, it made no claim that it was deprived of any substantive rights, and it was clear from Shanbron's affidavit that the defendant received actual notice of the cause of action and, therefore suffered no prejudice.   Thus, the plaintiff would have been allowed to extend § 52–72 to amend the return to change the date from August 7, 2012 to August 21, 2012 to cure the § 52–46 defect thereby conferring jurisdiction on the court.   However, because the plaintiff did not file the motion to amend until November 8, 2012, four months after the date of the process, which is July 6, 2012, the time for curing the defect in the return had passed pursuant to § 52–48(b).  Although a return date may be amended “it must still comply with the time limitations in [General Statutes] § 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.”  Coppola v. Coppola, supra, 243 Conn. 666–67.  “The ‘date of the process' ․ refers to the date of the writ of summons or attachment which must be accompanied by the complaint.”  Haylett v. Commission on Human Rights & Opportunities, 207 Conn. 547, 554–55, 541 A.2d 494 (1988).

Here, the date of process is July 6, 2012.   Therefore, after September 4, 2012, the plaintiff no longer had the ability to amend the return date.   The plaintiff filed a motion to amend for the first time, without a proposed amendment, on November 8, 2012, and a subsequent amended writ and summons on April 25, 2013.   At the time the court (Fischer, J.) granted the plaintiff's motion to amend on March 26, 2013, it lacked personal jurisdiction over the defendant.   Accordingly, the defendant's motion to dismiss is granted.

CONCLUSION

For the foregoing reasons, the motion to dismiss is granted and plaintiff's cause of action is dismissed for lack of jurisdiction.

Wilson, J.

FOOTNOTES

FN1. The date of process appears to be July 6, 2012.   The plaintiff initially dated process on July 10, 2012 but crossed out “10” and filled in “6.”.  FN1. The date of process appears to be July 6, 2012.   The plaintiff initially dated process on July 10, 2012 but crossed out “10” and filled in “6.”

Wilson, Robin L., J.