Nino Ribeiro v. Ippolito & Lee, P.C. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102), (# 105)

FACTS

On May 21, 2013, the plaintiff, Nino Ribeiro, filed a three-count complaint in this action against the defendants, Fasano, Ippolito & Lee, P.C. (the law firm), Alphonse Ippolito, Esq., Bank of America (the bank), Fidelity National Title Insurance Company, and Chicago Title Insurance Company.¹  In the complaint, the plaintiff alleges the following facts.   Sometime before March 29, 2013, the plaintiff retained the law firm and Ippolito in connection with his purchase and development of property located at 339 Greene Street, New Haven.   The law firm and Ippolito agreed to secure all legal rights that the plaintiff was entitled to, specifically including an easement for the carriage house on his property that would enable the plaintiff to use the water and sewer lines and pipes running from the adjacent property located at 329 Greene Street.   The closing for the 339 Greene Street property and the execution of the utility easement occurred on March 29, 2007.   At all times relevant to their representation of the plaintiff, Ippolito and the law firm also represented the interests of and acted as the agents for the bank as lender and mortgagee, as well as the title insurance companies, as insurers of the plaintiff's title.

In or around September 2007, the Gables at Wooster Square, a condominium development, assumed ownership and control of the property at 329 Greene Street and, relying on the language in the utility easement, refused and continues to refuse to allow the plaintiff to use the water and sewer lines and pipes.   In count one, the plaintiff alleges a breach of contract claim against Ippolito and the law firm for their failure to secure his rights and title in the easement and their numerous conflicts of interest;  in counts two and three against the bank and the title companies, respectively, the plaintiff alleges that they are liable for the damages he sustained as a result of the breaches and/or omissions committed by their agents, Ippolito and the law firm.

On June 26, 2013, the title companies filed a motion to dismiss the complaint for a lack of subject matter jurisdiction,² on the ground that the return date of May 28, 2013, was two months and two days after the date of process, in violation of General Statutes § 52–48(b).³  They submitted a memorandum of law in support of their motion as well as an affidavit by their counsel, R. Michael Meo, Jr. On June 27, 2013, the bank filed a motion to dismiss the complaint for a lack of personal jurisdiction on the same ground.   The bank submitted a memorandum of law in support of its motion.   On August 6, 2013, the plaintiff filed an objection to both motions, accompanied by a memorandum of law.   On August 16, 2013, and August 21, 2013, respectively, the title companies and the bank ⁴ each filed a reply memorandum.   On September 19, 2013, the plaintiff filed two surreply memoranda, each in response to the replies by the bank and the title companies.   The matter was heard at short calendar on September 23, 2013.

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.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “The grounds which may be asserted in [a motion to dismiss] are ․ lack of jurisdiction over the person ․ insufficiency of process [and] insufficiency of service of process.”  Ziska v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).  “[W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 308, 400–01, 21 A.3d 451 (2011).

The defendants argue that the plaintiff violated § 52–48(b) because the return date on the summons was May 28, 2013, two months and two days after the date process was signed, March 26, 2013.   The defendants contend that, even though General Statutes § 52–72(a) ⁵ allows proper amendment to civil process in the event of a mistake relating to the return date, the plaintiff cannot amend in such a way that an amended return date would comply with both § 52–48(b) and General Statutes § 52–46a.⁶  In response, the plaintiff counters that § 52–72(a) has been amended to allow proper amendment to civil process that was defective for any reason.   The plaintiff asserts that an October 1, 2012 amendment gives him the opportunity to amend the return date of his writ of summons and complaint nunc pro tunc because the language of § 52–72(a) implies that the statute covers both defects in the return date as well as defects in the date of the return of the writ of summons and complaint.   Moreover, the plaintiff argues that case law and statutory interpretation favor allowing a trial on the merits over elevating technical rules, unless the moving party claims that it has been prejudiced, which the title companies and the bank have not done here.

In their reply memorandum of law, the defendants each argue that moving the return date to within two months would violate § 52–46a, and that the plaintiff's solution to this problem, moving the filing date of the summons and the complaint to May 14 instead of May 21 (to avoid § 52–46a) is not supported by any authority.   The defendants also argue that the amendment to § 52–72(a) did nothing to make its scope broader than it already was after Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998).   Further, they contend that there is no authority that would allow the plaintiff to amend the return date to comply with § 52–48(b) while also complying with § 52–46a.   It is the defendants' position that § 52–72 cannot be used to save civil process when it is impossible for the plaintiff to amend such that §§ 52–48(b) and 52–46a are both satisfied.   In his surreply memoranda, the plaintiff maintains that civil process can be amended to correct the failure to return process at least six days before the return date as required by § 52–46a.   The plaintiff also reasserts his argument that the defendants would not be prejudiced if he were to amend the return date of his writ of summons and complaint nunc pro tunc.

The plaintiff's writ of summons and complaint were signed on March 26, 2013, with a return date of May 28, 2013.   The title companies filed a joint appearance on May 30, 2013, and the bank filed an appearance on that same date.⁷  The plaintiff then returned process to the Superior Court, filing his summons and complaint, on May 21, 2013.   This return date of May 28, 2013 is not within the two-month limit of the date of process, March 26, 2013, as mandated by § 52–48(b).

The Connecticut Supreme Court has taken a cautious approach toward dismissing suits because of defective return dates.   In Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994), the court reasoned that the legislature intended to prevent loss of jurisdiction due to defective return dates when it enacted § 52–72, and that the statute “must be liberally construed in favor of those whom the legislature intended to benefit.”  (Internal quotation marks omitted.)  Id., 623.  “[T]he 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.”  (Citation omitted;  internal quotation marks omitted.)  Coppola v. Coppola, supra, 243 Conn. 663–64.  “[S]uch an interpretation is consistent with our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”  (Internal quotation marks omitted.)  Id., 665.

Although the Coppola court came out in favor of allowing the return date to be amended, the court took the opportunity to lay out the boundaries of § 52–72.  “[T]he 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 proceeding voidable, rather than void, and subject to abatement.”  Id., 661–62.  “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 ‘[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 time limit, circumscribes the extent to which a return date may be amended.”  Id., 666–67.

This court took up the issue of amending a return date pursuant to § 52–72 in Fisher v. Clark, Superior Court, judicial district of New Haven, Docket No. CV–11–6022598–S (November 10, 2011, Wilson, J.).   In Fisher, the writ of summons and complaint were dated June 13, 2011, and June 12, 2011, respectively, and the return date was marked August 9, 2011.   Process was served upon the defendant on June 14, 2011, and it was returned to the court on August 9, 2011, in violation of the six day § 52–46a requirement.   This court noted that Coppola makes it mandatory for parties in civil actions to follow the six day rule outlined in § 52–46a, or face dismissal.   This court further reasoned that although return dates may be amended, they still must comply with §§ 52–48(b) and 52–46a.   This court explained that, in this instance, “the return date [could not] be amended to simultaneously comply with § 52–46a and § 52–48(b).”  Id. The only possible return date after the date process was returned to court, August 9, was Tuesday, August 15, 2011.   Because that date was more than two months from the dates of process, June 12 and June 13, this court granted the motion to dismiss.   There is no mention in Fisher of a right to amend the date process was returned to court.

Likewise, in Cumins v. Baker, Superior Court, judicial district of Hartford, Docket No. CV10–6017485–S (June 5, 2012, Woods, J.), the court granted a motion to dismiss for lack of personal jurisdiction where an amendment of the return date could not comply with both § 52–48(b) and § 52–46a.   The court concluded that the statutes require that “(1) the amended return date must be a Tuesday; ⁸  (2) the amended return date must be within two months of the original date of process;  and (3) the date on which the original writ of summons and complaint were filed with the clerk must be at least six days prior to the amended return date.”  Id. The court noted that the plaintiff's requested the opportunity to amend the date of the writ and summons, or the date of return of process, but that the argument has no basis in the law.   “There are cases that have held that a plaintiff may amend the return date to comply with all three requirements, but, however, there is nothing in those cases which suggest the plaintiff can amend the writ of summons entirely and reserve it with a complaint to remedy the defect.”  Id.

In the present case and as noted previously, process was signed with respect to both of the defendants on March 26, 2013, and the return date was set at May 28, 2013.   Since this return date is two months and two days past the date on which process was signed, it is outside the two month requirement in § 52–48(b).  The plaintiff then returned process to this court on May 21, 2013, in compliance with § 52–46a, as May 21 is at least six days prior to the return date of May 28, 2013.   The return of process date here on May 21, as in Cumins, cannot be amended to be in agreement with both § 52–46a and § 52–48(b), as it must be.   Moreover, since the return date to this court must be on a Tuesday, as stated in § 52–48(a), moving the May 28 date back one week to a Tuesday would make the return date fall on May 21, the same date as the return of process, resulting in noncompliance with § 52–46a.   Also, if the return date is to be pushed forward to the following Tuesday, or June 4, 2013, the two-month limit between June 4, 2013, and the date process was signed on March 26 would still be contravened.   Due to the original return date of May 28, 2013, on the writ of summons, and the date on which the plaintiff returned process to this court on May 21, 2013, there is no date to which the court can amend the return date and remain in compliance with the requirements of both § 52–48(b) and § 52–46a.   As this constitutes insufficient process, this court lacks personal jurisdiction over the defendants.

CONCLUSION

For the foregoing reasons, the defendants' motions to dismiss for lack of personal jurisdiction are granted.

Wilson, J.

FOOTNOTES

FN1. Fidelity National Title Insurance Company and Chicago Title Insurance Company have jointly filed to dismiss this action and will therefore be referred to as “the title companies.”   The title companies jointly filed their briefs while the bank moves to dismiss on its own accord and filed its own brief.   Because the issues in both of these motions are the same, the title companies and the bank will be referred to collectively as the defendants..  FN1. Fidelity National Title Insurance Company and Chicago Title Insurance Company have jointly filed to dismiss this action and will therefore be referred to as “the title companies.”   The title companies jointly filed their briefs while the bank moves to dismiss on its own accord and filed its own brief.   Because the issues in both of these motions are the same, the title companies and the bank will be referred to collectively as the defendants.

FN2. Although, “[a] defect in process ․ implicates personal jurisdiction, rather than subject matter jurisdiction”;  (internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011);  “several trial courts have concluded that it does.   See Van Ser Sluys v. Shelton, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 08 5006047 (September 19, 2008, Cronan, J.);   Szeligowski v. Lowe's Co., Superior Court, judicial district of New Haven, Docket No. CV 06 5004607 (January 23, 2007, Holden, J.) (42 Conn. L. Rptr. 714);  Gabriele v. Wisharp, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390841 (September 23, 2002, Wolven, J.);   Lestor v. Mangar, Superior Court, judicial district of Danbury, Docket No. CV 01 0344146 (July 10, 2002, Doherty, J.) (32 Conn. L. Rptr. 479);  and Archie v. Yale, Superior Court, judicial district of New Haven, Docket No. CV 99 0430379 (January 13, 2000, Fracasses, J.) [26 Conn. L. Rptr. 330].”   Gello v. Stevens, Superior Court, judicial district of New Haven, Docket No. CV–06–5006892–S (November 7, 2008, Robinson, J.)..  FN2. Although, “[a] defect in process ․ implicates personal jurisdiction, rather than subject matter jurisdiction”;  (internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011);  “several trial courts have concluded that it does.   See Van Ser Sluys v. Shelton, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 08 5006047 (September 19, 2008, Cronan, J.);   Szeligowski v. Lowe's Co., Superior Court, judicial district of New Haven, Docket No. CV 06 5004607 (January 23, 2007, Holden, J.) (42 Conn. L. Rptr. 714);  Gabriele v. Wisharp, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390841 (September 23, 2002, Wolven, J.);   Lestor v. Mangar, Superior Court, judicial district of Danbury, Docket No. CV 01 0344146 (July 10, 2002, Doherty, J.) (32 Conn. L. Rptr. 479);  and Archie v. Yale, Superior Court, judicial district of New Haven, Docket No. CV 99 0430379 (January 13, 2000, Fracasses, J.) [26 Conn. L. Rptr. 330].”   Gello v. Stevens, Superior Court, judicial district of New Haven, Docket No. CV–06–5006892–S (November 7, 2008, Robinson, J.).

FN3. General Statutes § 52–48(b), entitled “Return day of process,” provides, “[a]ll 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.”.  FN3. General Statutes § 52–48(b), entitled “Return day of process,” provides, “[a]ll 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.”

FN4. The bank in its reply memorandum states that the return date violates § 52–58(b), which is the incorrect statute.   The correct statute implicated in the present motion is § 52–48(b)..  FN4. The bank in its reply memorandum states that the return date violates § 52–58(b), which is the incorrect statute.   The correct statute implicated in the present motion is § 52–48(b).

FN5. General Statutes § 52–72(a), entitled “Amendment of process,” provides, “[u]pon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective.”.  FN5. General Statutes § 52–72(a), entitled “Amendment of process,” provides, “[u]pon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective.”

FN6. General Statutes § 52–46a, entitled “Return of process,” provides, “[p]rocess in civil actions returnable to the Superior Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.”.  FN6. General Statutes § 52–46a, entitled “Return of process,” provides, “[p]rocess in civil actions returnable to the Superior Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.”

FN7. The title companies filed their appearance originally on May 29, 2013, but they filed under different representation the next day.   The court also notes that the title companies' and bank's motions to dismiss were timely filed pursuant to Practice Book § 10–30 which requires “[a]ny defendant, wishing to contest the court's jurisdiction, [must do so] ․ within thirty days of the filing of an appearance.   The title companies filed their appearance on May 29 and May 30, 2013, and the bank filed its appearance on May 30, 2013.   The title companies filed their motion to dismiss on June 26, 2013, and the bank filed its motion on June 27, 2013..  FN7. The title companies filed their appearance originally on May 29, 2013, but they filed under different representation the next day.   The court also notes that the title companies' and bank's motions to dismiss were timely filed pursuant to Practice Book § 10–30 which requires “[a]ny defendant, wishing to contest the court's jurisdiction, [must do so] ․ within thirty days of the filing of an appearance.   The title companies filed their appearance on May 29 and May 30, 2013, and the bank filed its appearance on May 30, 2013.   The title companies filed their motion to dismiss on June 26, 2013, and the bank filed its motion on June 27, 2013.

FN8. General Statutes § 52–48(a), entitled, “Return day of process,” provides, “[p]rocess 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 ․”.  FN8. General Statutes § 52–48(a), entitled, “Return day of process,” provides, “[p]rocess 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 ․”

Wilson, Robin L., J.