Opinion
No. CV02 40 01 65 S
September 18, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#105)
Before the court is the defendant's motion to dismiss, which is premised on the plaintiff's failure to return process to the court in conformity with General Statutes §§ 52-46a and 52-48. The procedural history is undisputed. The plaintiff, Christine Batura, brought a one-count negligence complaint against the defendant, John V. Turk, alleging that she sustained personal injuries as a result of a fall on property owned by the defendant. The summons and complaint are dated October 29, 2002, and bear a return date of December 17, 2002. The marshal's return indicates that on November 13, 2002, he left the writ, summons and complaint at the defendant's usual place of abode. The plaintiff did not, however, return the process to the court until February 6, 2003, seven weeks after the return date, and more than three months after the date of process. Prior to that date, on or about November 26, 2002, counsel for the defendant sent an appearance to the plaintiff's counsel along with a notice that he was serving interrogatories and requests for production on the plaintiff. (Plaintiff's Memorandum of Law in Objection to the Defendant's Motion to Dismiss.) On March 21, 2003, the defendant's counsel sent an appearance to the court, which was file-stamped by the clerk's office and placed in the file.
On April 15, 2003, the defendant filed the motion to dismiss that is before the court. He contends that the court lacks jurisdiction over this matter because the plaintiff did not return the process to the court at least six days before the return date as required by § 52-46a. The plaintiff counters that the court should not consider the defendant's motion to dismiss because the defendant did not file it within thirty days of the date he filed his November 26, 2002 appearance, as required by Practice Book § 10-30. The defendant replies that he could not have filed that first appearance because, as of that date, the plaintiff had not yet returned process to the court. He argues that the motion to dismiss is timely because he filed it within thirty days of the appearance he filed on March 21, 2003. Further, he contends that his motion should be granted because the plaintiff did not return process to CT Page 10878-ds the court within two months of the date it was served on the defendant. He is apparently relying on § 52-48 for this argument.
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The first issue is the timeliness of the defendant's motion to dismiss. Pursuant to Practice Book 10-30, a defendant may waive his or her right to challenge the court's personal jurisdiction by failing to file a motion to dismiss within thirty days after the date the defendant files an appearance. Therefore, "thirty-one days after the filing of an appearance . . . a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). On the other hand, pursuant to Practice Book § 10-33 "[t]he requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage of the proceedings." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52, 794 A.2d 498 (2002). Thus, the timeliness of the defendant's motion appears to depend on whether the defendant's arguments implicate the court's personal jurisdiction over the defendant or its subject matter jurisdiction over the plaintiff's action. In light of the following, however, the court is not required to resolve the issue of the type of jurisdiction that is at issue.
The Supreme Court recently held that a party's failure to properly serve process implicates the court's personal jurisdiction. Conner v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002). The court reasoned: "A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it." Id., 443. On the other hand, in Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055 (2001), the Appellate Court addressed the issue of the plaintiff's failure to comply with § 52-48 in the context of the defendant's motion to strike for lack of subject matter jurisdiction. See also, Haigh v. Haigh, 50 Conn. App. 456, 464-65, 717 A.2d 837 (1998) ("issue to be resolved is whether an incorrect return date is a fatal subject matter jurisdictional defect); and Connelly v. Wendover Financial, Superior Court, judicial district of Waterbury, Docket No. CV 02 0168999 (March 13, 2002, West, J.) ( 31 Conn.L.Rptr. 523, 524) ("In light of General Statutes § 52-48 (b) and [ Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998)], if a return of process defect involves a [plaintiffs'] failure to return process to court within two months after service on the defendant, such a defect implicates the court's subject matter jurisdiction" (internal quotation marks omitted)).
As previously noted, the defendant's counsel sent an appearance and a notice pertaining to discovery to the plaintiff's counsel on or about November 26, 2002. Although the plaintiff asserts that the defendant "filed" these documents, he does not present any evidence that the defendant did so. Neither document is in the court's file, which is not unusual because, at that time, the plaintiff had not yet returned process to the court and thus, the file did not exist. In addition, neither document contains a court file-stamp. The following also indicates that the defendant's November 26, 2002 appearance was not filed. As noted by the Appellate Court, "`[t]he appearance is an acknowledgment that (a) one is representing oneself (pro se) or (b) an attorney is representing another in a legal proceeding' . . . W. Horton K. Knox, 1 Connecticut Practice Book Series: Practice Book Annotated (2003 Ed.) § 3-1, comments, p. 269." (Emphasis added.) Rosado v. Bridgeport CT Page 10878-dt Roman Catholic Diocesan Corp., 77 Conn. App. 690, 740 n. 47, 822 A.2d 366 (2003). In addition, this appearance was not filed as contemplated by the Practice Book because the language used in §§ 3-1, 3-2, 3-3, and 3-4, which pertain to the filing of appearances, indicates that appearances are filed with a writ or after a writ has been filed. Indeed, "Black's Law Dictionary (6th Ed. 1990) generally defines an appearance as [ inter alia]: `A coming into court as a party to a suit.' " (Emphasis added.) Pitchell v. Hartford, supra, 247 Conn. 432 n. 13. The term "appearance by attorney" is defined as: "An act of an attorney in prosecuting an action on behalf of his client. Document filed in court in which attorney sets forth fact that he is representing a party to the action." (Emphasis added.) Black's Law Dictionary (6th Ed. 1990).
A later edition of Black's defines the term as "[A] coming into court as a party or interested person, or as a lawyer on behalf of a party or interested person." Black's Law Dictionary (7th Ed. 1999).
In this case, as of November 26, 2002, the plaintiff had not yet returned the process to the court, thus, no legal proceeding or suit existed in which the defendant could file his appearance. "[I]t is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed . . . Thus, although a defendant in a civil action may consent to the jurisdiction of the court, the court may not proceed with the action until the return of process is made to the court." (Internal quotation marks omitted.) Arpaia v. Corrone, 18 Conn. App. 539, 541, 559 A.2d 719 (1989). Accordingly, although a defendant may attempt to file an appearance before process is returned to the court, the defendant cannot do so and "the rejection of the formal appearance by the clerk [for this reason] is tantamount to nonfiling, and the record cannot be read so as to conclude that the formal appearance form was actually filed and accepted by the Court on the attempted filing date . . . so as to cause the 30-day period [of § 10-30] to commence to run from that date." Lynch v. Patrons Mutual Ins. Co. of Connecticut, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 96 0561029 (November 5, 1996, Sullivan, J.).
Furthermore, the defendant could not have filed a motion to dismiss within thirty days of the date of the November 26, 2002 appearance (or by December 26, 2002) because the plaintiff did not return the process to the court until February 6, 2003. Accordingly, "[t]here was no existing action which the [defendant] could have asked the court to dismiss." Archie v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 99 0430379 (January 13, 2000, Fracasse, J.) ( 26 Conn.L.Rptr. 330). See also Coppola v. Coppola, Superior Court, judicial district of New Haven, Docket No. CV 95 0377444 (December 6, 1995, Hadden, J.) ( 15 Conn.L.Rptr. 472), aff'd., 44 Conn. App. 930, 691 A.2d 1128 (1997), rev'd on other grounds, 243 Conn. 657, 707 A.2d 281 (1998) (defendant's premature appearance did not trigger thirty-day CT Page 10878-du filing requirement of § 10-30). Thus, even if the defendant sent his November 26, 2002 appearance to the court, it was not "filed" as that term is used to calculate the time within which he was required to file a motion to dismiss for lack of personal jurisdiction. Therefore, the court concludes that the defendant timely filed the motion to dismiss because he filed it within thirty days of the date that he filed his March 21, 2002 appearance.
"Moreover, Practice Book § 10-6 sets forth `pleadings allowed and their order.' Section 10-6 provides, in pertinent part, that: `[T]he order of pleading shall be as follows: (1) the plaintiff's complaint. (2) The defendant's motion to dismiss the complaint . . .' Pursuant to Practice Book § 10-6, the defendants could not properly file their motion to dismiss until the plaintiff filed her complaint." Archie v. Yale New Haven Hospital, supra, 26 Conn.L.Rptr. 330. As stated by our Supreme Court, "[a] defendant in a civil action need not appear in court until the second day following the return date . . . A motion to dismiss . . . need not be filed until thirty days after the defendant's appearance . . . As a practical matter, a motion to dismiss is never brought before the return date is passed." Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 625, 642 A.2d 1186 (1994).
The court now turns to the substance of the defendant's motion. As noted above, the plaintiff did not return the process to the court at least six days before the return date. General Statutes § 52-46a provides in relevant part: "Process in civil actions . . . shall be returned . . . if returnable to the Superior Court . . . to the clerk of such court at least six days before the return day." According to our Supreme Court, "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 proceeding voidable, rather than void, and subject to abatement." Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998). The proceeding is voidable rather than void because the requirement can be waived by the defendant; Arpaia v. Corrone, supra, 18 Conn. App. 541; and because General Statutes § 52-72 provides in relevant part: "(a) 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 . . ." "The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." (Internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 663-64. The Supreme Court has construed "the term defective [as used in § 52-72] to permit an amendment of the return date to correct the plaintiff's failure to return process six days prior to the return day . . ." Id., 665.
The defendant's contention that § 52-72 cannot be used to amend a return of process that is untimely is inaccurate. The Superior Court case that the defendant relies on for this argument, Shelansky v. Roivisto, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 93 0533137 (February 27, 1995, Corridino, J.) ( 13 Conn.L.Rptr. 532), was decided prior to Coppola v. Coppola. Indeed, in Coppola v. Coppola, supra 243 Conn. 666, the court expressed its disagreement with the reasoning that the court used in Shelansky v. Roivisto.
This construction is not, however, helpful to the plaintiff in this case. First, the plaintiff has not moved to amend the return date. Second, and more importantly, the plaintiff also failed to comply with § 52-48 (b). General Statutes § 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." "The `date of process,' of course, 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). Although "[a] return date may be amended . . . it still must comply with the time limitations set forth in § 52-48 . . . Section 52-48 (b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended." CT Page 10878-dv Coppola v. Coppola, supra, 243 Conn. 666-67. Thus, although the Appellate Court has held that a plaintiff may utilize § 52-72 to amend a return date to comply with § 52-48; Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 310-11, 763 A.2d 1055 (2001); the amended date, however, must be within two months of the date of process. Id., 309. Because the plaintiff process dated October 29, 2002, and was served on November 13, 2002, she did not return the process to the court until February 6, 2003, it is not possible for her to amend the return date to comply with § 52-48 and dismissal of the action is warranted. See Brague v. Nightingale, Superior Court, judicial district of Litchfield, Docket No. CV 00 0087593 (October 11, 2002, DiPentima, J.), and Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. CV 98 0547104 (August 11, 1999, Martin, J.) ( 25 Conn.L.Rptr. 254).
For the foregoing reason, the defendant's motion to dismiss is granted.
RUSH, J.