Opinion
HHDCV166066103S
08-25-2016
Vera Anderson et al. v. Bank of America, N.A
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Cesar A. Noble, J.
The defendant's motion to dismiss presents the question of whether a clerical failure to upload the correct writ of summons and complaint deprives the court of personal jurisdiction. The court finds that it does, and that it has no authority, as requested by the plaintiffs, to amend the actual date that is the " filing date" of the process.
FACTS AND PROCEDURAL HISTORY
The following facts and procedural history are derived from the court file, the defendant's motion to dismiss, the plaintiffs' opposition to the motion to dismiss, their motion to amend the filing date with an attached affidavit and their motion to amend the return date.
The plaintiff, Vera Anderson, is attempting to recover for injuries allegedly suffered as a result of a February 6, 2014, fall on snow and ice in a sidewalk or driveway on property owned and possessed by the defendant, Bank of America. Her son, the plaintiff Darrelle Anderson, claims also to have fallen and suffered injury when he went to his mother's aid. The plaintiffs claim Bank of America is liable under a theory of premises liability for their fall and injuries.
Vera and Darrelle Anderson will be referred to collectively as the " plaintiffs."
The plaintiffs served a writ of summons and a complaint on the defendant on February 3, 2016, with a return date of March 8, 2016. See Pls.' Return of Service filed with the court on March 14, 2016. (Entry #102.) The court's file reflects that on February 16, 2016, the plaintiffs filed two documents with the State of Connecticut Judicial Branch web site, a summons and a complaint, in an effort to e-file a new civil case on behalf of the plaintiffs. They were not, however, the writ of summons and complaint that were served on the defendant, and in fact corresponded to an entirely different case. The affidavit of a secretary employed by counsel for the plaintiffs avers that she entered the case information, received the docket number and paid the filing fee for this case on that date. It is clear that the case information entered by the secretary correctly identified Vera and Darrelle as the plaintiffs and Bank of America as the defendant. The case information also correctly reflected March 8, 2016, as the return date. The secretary simply mistakenly uploaded the writ of summons and complaint for a different file. On March 11, 2016, the plaintiffs filed what purports to be the actual complaint served on the defendant, which is dated January 28, 2016, and contains the March 8, 2016, return date. The document was filed without a motion or request for leave to amend. The marshal's return of service referenced above was filed by the plaintiffs on March 14, 2016.
The defendant appeared on March 18, 2016, and filed a motion to dismiss on April 5, 2016. The defendant advances two grounds for the granting of the motion. The first is that the court lacks jurisdiction because the plaintiff failed to comply with General Statutes § 52-46a, which requires that the writ of summons and complaint be returned to court at least six days before the return date. The documents uploaded on February 16, 2016, were not the writ of summons and complaint that were served on the defendant. The second basis for dismissal is that the plaintiff failed to file the writ of summons with the court, and such is required, in the view of the defendant, by General Statutes § 52-45a.
The defendant's motion references General Statutes § 52-46 but it is clear that it actually relies upon § 52-46a The latter statute provides in relevant part that " [p]rocess in civil actions [returnable to the Superior Court] . . . shall be returned . . . to the clerk of such court at least six days before the return day."
General Statutes § 52-45a provides that civil actions are commenced by legal process consisting of a writ of summons, containing specified information, accompanied by the plaintiff's complaint and mandates that the writ shall be signed. The statute also mandates that the writ of summons be signed.
On April 18, 2016, the plaintiffs filed an unsigned writ of summons naming the correct parties, which contained the March 8, 2016, return date. Thereafter, on April 28, 2016, the plaintiffs filed a " Motion to Amend Filing Date." The motion sought to amend the date the writ of summons and complaint, actually filed on April 18, 2016, and March 11, 2016, respectively, to February 16, 2016. In essence the plaintiffs are asking the court to amend the date of the filing of the writ of summons and complaint so that they may be regarded, for purposes of jurisdiction, as if they were filed on February 16, 2016. The plaintiffs then filed an objection to the motion to dismiss on the basis that the granting of their motion to amend would cure any defect in jurisdiction. The defendant objects to the motion to amend the filing date because the defect causing the lack of jurisdiction is not a mere technical or circumstantial defect capable of being cured by amendment. Oral argument was heard on June 6, 2016.
The plaintiff also filed a Motion to Amend the Return date to May 3, 2016, pursuant to General Statutes § 52-72 but conceded at oral argument that this motion should be denied. The court concurs that such an amendment, while curing the § 52-46a defect by extending the return date beyond the minimum six-day period for returning the process to court would run afoul of the requirement imposed by § 52-48 that process be made returnable not later than two months after the date of process.
STANDARD
" [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). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). Practice Book § 10-30 provides that " (a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process. (b) Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Generally, " [a] defect in process . . . such as an improperly executed writ, 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). " Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." (Internal quotation marks omitted.) General Electric Capital Corp. v. Metz Family Enterprises, LLC, 141 Conn.App. 412, 420, 61 A.3d 1154 (2013). The failure to comply with the requirements of § 52-46a implicate personal rather than subject matter jurisdiction. See Mulroy v. Aqua Pool & Patio, Inc., Superior Court, judicial district of Stamford, Docket No. CV-09-5010174-S (March 1, 2010, Brazzel-Massaro, J.) (49 Conn.L.Rptr. 430, 431, ) (reasoning that Supreme Court's holding in Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998) that failure to comply with the § 52-46a requirement to return process six days before the return date renders the proceeding voidable, rather than void, and subject to abatement creates inference that § 52-46a affects only personal jurisdiction because such may be created through consent or waiver.) See also Amos Fin., LLC v. Center for Advanced Pediatrics, P.C., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-11-6011064-S, (January 5, 2012, Taggart, J.T.R.) (2012 WL 310510, at *1 fn.1) .
ANALYSIS
The plaintiffs do not dispute the defendant's assertion that the failure to have electronically filed the correct writ of summons and complaint deprives the court of personal jurisdiction over the defendants. Indeed, our Supreme Court has stated that the return of process is accomplished only by the physical receipt by the clerk's office of the process and its timeliness depends upon such receipt within the prescribed time period. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 435, 559 A.2d 1110 (1989). While the decision precedes the advent of e filing in Connecticut in December of 2009; see E-Filing Manual for Civil, Family and Housing Matters (March 1, 2016, p. 3), available at http://www.jud.ct.gov/external/super/E-Services/efile/Atty_UserManual.pdf (last visited August 23, 2016); the case establishes the mandate that for jurisdiction to be vested in the court, the return of the process must be timely e-filed. In the view of the plaintiffs, however, personal jurisdiction may be secured if the court grants their motion to amend the actual date on which the correct writ of summons and complaint were filed to February 16, 2016. The plaintiffs argue that General Statutes § § 52-72(a), 52-123 and 52-130 provide the court with the authority to perform this temporal modification. The court is not persuaded.
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."
" No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." General Statutes § 52-123.
General Statutes § 52-130 provides in relevant part: " Parties may amend any defect, mistake or informality in the pleadings or other parts of the record or proceedings."
Our courts have long recognized the merit of granting a motion to amend--where statutorily permissible--a technical or circumstantial error in process or pleading that rectifies a defect that would otherwise deprive the court of personal jurisdiction. See Sanford v. Bacon, 75 Conn. 541, 543, 54 A. 204 (1903) (observing that an earlier statute permitting an amendment of an ad damnum clause remedies the " mischief of the common law" that would otherwise deprive the court of jurisdiction). Further, it may be an abuse of discretion for a trial court to reject a request for leave to amend a complaint to include an amended opinion letter complying with General Statutes § 52-190a(c) that would cure a lack of personal jurisdiction caused by the noncompliance of the original opinion letter. See Gonzales v. Langdon, 161 Conn.App. 497, 517, 128 A.3d 562 (2015). As the plaintiffs point out in their memoranda the statutes upon which they rely, § § 52-72(a), 52-123 and 52-130, are remedial in nature and should be liberally construed to permit amendments addressing jurisdictional defects. " Section 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit." Coppola v. Coppola, supra, 243 Conn. 664. " Section 52-123 is [relative to § 52-72] a comparably worded remedial statute to which the same principles apply." Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 399, 655 A.2d 759, 763 (1995). " The purpose of the statute [§ 52-130] allowing amendment of pleadings is to accomplish justice." (Internal quotation marks omitted.) Jacob v. Dometic Origo AB, 100 Conn.App. 107, 112-13, 916 A.2d 872, cert. granted, 282 Conn. 922, 925 A.2d 1103 (2007).
The defendant does not dispute the remedial nature of the statutes but instead argues that they are inapplicable and this case is governed by the Supreme Court's decision in Rogozinski v. American Food Service Equipment Corp., supra, 211 Conn. 431. Rogozinski addressed the issue of whether a plaintiff's action was subject to dismissal for the return of process five days before the return date in violation of General Statutes § 52-46a. Our Supreme Court held that compliance with the time dictates of the statute " is mandatory and failure to comply with its requirements as to the time when process shall be served renders the proceeding voidable and subject to abatement." Id., 433. The plaintiffs claimed that they should have been permitted to amend the late return of process under § 52-123 because it was a " circumstantial error" subject to amendment pursuant to that statute. The action was not saved, held the court, by the facially expansive language of § 52-123 because the application of that statute is limited to defects in the writ, and therefore, inapplicable to the untimely return of process. Id., 435. Accordingly, the Supreme Court held that the trial court correctly dismissed the action for the plaintiff's failure to timely return the process to the clerk's office. This court notes that the Rogozinski court, however, considered only whether an amendment was authorized under § 52-123.
Section 52-46a provides in relevant part that " [p]rocess in civil actions [returnable to the Superior Court] . . . shall be returned. to the clerk of such court at least six days before the return day."
The decision in Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn.App. 617, 643, 117 A.3d 965 (2015) more closely reflects the issue presented in the present case. There the Appellate Court enunciated the principle that a party is not permitted to amend, pursuant to General Statutes § 52-72(a), the date on which the writ is returned to the Superior Court because such is an historical fact, a matter of record and may not be altered. Id., 623 fn.3, and 630-31. In Ribeiro, the writ of summons and complaint were signed on March 26, 2013. The return date contained in both was May 28, 2013, two months and two days after the date of process which was returned to court on May 21, 2013. Id., 620. The defendants moved to dismiss the action on jurisdictional grounds on the basis that the process was not made returnable within two months after the date it was signed, thus violating General Statutes § 52-48(b) which requires such a return not later than two months after the date of the process. Id. The plaintiff sought to amend the date the writ was returned to court so that it would be deemed to have been filed nunc pro tunc on May 14, 2013, and further moved to amend the return date to May 21, 2013, all pursuant to the authority he claimed was provided by § 52-72(a). The court held that § 52-72(a) did not authorize such an amendment. It found that each of the defects to which it had been previously applied " was technical in nature and was remedied by changing the word(s) or numeral(s) on a page. [The court was unaware] of any case in which a court has taken the unusual step of purporting to alter, after the fact, the date on which a writ actually was returned to court." Id., 628. The court held that " the date process is returned to court is an historical fact and may not be amended by judicial fiat. Once process is returned to court and the date of return is recorded in the Superior Court file, it ought not be subject to change." Id., 629.
Process is defined by General Statutes § 52-45a as a signed writ of summons or attachment accompanied by the complaint.
The broad language prohibiting amendments of historical facts found in Ribeiro is equally applicable to an amendment of the date of process pursuant to § 52-130. The parties have not brought to the court's attention any case involving an attempt to amend pursuant to § 52-130 in an effort to cure a jurisdictional defect, nor has the court's research found any which specifically addresses this issue. The court finds that this statute, which permits parties to amend any defect, mistake or informality in the pleadings or other parts of the record or proceedings, is not applicable. The plaintiffs here are not claiming that any pleadings or part of the record or proceedings are defective, mistaken or reflect an informality. The plaintiffs, for example, do not dispute that the pleadings, record and proceedings accurately reflect February 16, 2016, as the date documents purporting to be process were e-filed by the plaintiffs. Because the plaintiffs seek to amend an historical date rather than any defect, mistake or informality in a pleading, record or proceeding, the court finds that § 52-130 is inapplicable and provides no authority to change the date the process was returned to court.
Notably, the plaintiffs do not ask the court to permit them to amend the documents that were filed on February 16, 2016.
Finally, the plaintiff's failure to have timely filed a signed writ of summons also serves as a basis to dismiss the case. " The plain language of the statute [§ 52-45a] provides . . . that a signed writ be accompanied by a copy of the complaint." (Emphasis added.) Shokite v. Perez, 19 Conn.App. 203, 205, 561 A.2d 461 (1989). Here the plaintiff only filed, again without request to amend, an unsigned summons form on April 18, 2016. Because a signed writ of summons is part of the process and further because General Statutes § 52-46a requires that process shall be returned to the clerk, the court lacks jurisdiction on this basis as well.
CONCLUSION
For the foregoing reasons, the court is constrained from amending the date of the return of process, an historical fact. Because the plaintiff never returned a signed writ of summons, the plaintiffs' motion to amend is denied. The action of the plaintiffs is therefore dismissed for want of jurisdiction.