Opinion
No. CV 054002991
May 9, 2006
MEMORANDUM OF DECISION RE WHETHER ONE OF MORE APPORTIONMENT COMPLAINTS TIMELY FILED
Plaintiff Barbara Caldwell, an elderly petite woman, alleges that on or about November 23, 2004, a representative from the Connecticut Department of Mental Retardation visited her at her home for the purpose of providing services, including purchasing groceries for her. The representative was accompanied by a woman whose name is Sharon. As the representative was leaving the plaintiff's home, Sharon, a large woman who has difficulty walking, fell backward into the plaintiff causing her to fall to the floor and sustain serious injuries. It is alleged that Sharon is a client of the Department.
After the plaintiff brought an action against the department pursuant to General Statutes § 19a-24, the Department filed two apportionment complaints on December 13, 2005, by which it seeks to add Thames Valley Council for Community Development, Inc. (Thames) as an apportionment defendant. The Department alleges that Thames is a nonprofit community action agency that provided services to the plaintiff; that Sharon was a volunteer for Thames; that Thames knew that Sharon had problems with balance and gait and wears leg braces and special shoes; and that Thames was negligent in allowing Sharon to be in a position to harm the plaintiff.
General Statutes § 19a-24(a) provides in relevant part: "Any claim for damages in excess of seven thousand five hundred dollars on account of any official act or omission of the . . . Commissioner of Mental Retardation or any member of their staffs . . . shall be brought as a civil action against the commissioners in their official capacities and said commissioners shall be represented therein by the Attorney General in the manner provided in chapter 35."
The first apportionment complaint, dated September 16, 2005, does not contain a return day. According to the Marshall's Return of Service, Thames was served with process for this complaint on September 19, 2005. The second apportionment complaint, dated September 21, 2005, contains a return date of October 25, 2005. According to the Marshall's Return of Service, this latter-dated apportionment complaint was served on October 11, 2005. Thames has filed a motion to dismiss both apportionment complaints. Thames offers two grounds for dismissing the apportionment complaint: "first, service was not made upon the apportionment defendant within the 120 days specified by [General Statutes § 52-102b]; and, second, process was not returned to the clerk within six days prior to the Return Date, as required by [General Statutes § 52-46a]."
General Statutes Section 52-102b(a)
Thames argues that pursuant to General Statues § 52-102b(a), the Department was required to serve an apportionment complaint within 120 days of the return date specified in the original complaint and because the second, corrected apportionment complaint was not served within 120 days of the original complaint, this court lacks jurisdiction. Section 52-102b(a) provides in relevant part: "[a]ny such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint." The 120-day time limitation contained in § 52-102b implicates personal jurisdiction over the defendant rather than subject matter jurisdiction. Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31-33, 848 A.2d 418 (2004). In a case not unlike the present one, one trial court judge denied a motion to dismiss based on the claimed failure of the apportionment plaintiff to serve its complaint as required by § 52-102b. Rouleau v. Walter D. Sullivan Co., Superior Court, judicial district of Hartford, Docket No. CV 02 0821210 (November 26, 2003, Wagner, J.T.R.) ( 36 Conn. L. Rptr. 75, 76). This court concluded that an apportionment complaint lacking any return day, otherwise correct and served within the 120-day time limit set forth in § 52-102b(a) puts an apportionment defendant on notice, and absent a claim of prejudice or undue delay, General Statutes § 52-72 allows the apportionment plaintiff to correct the defect thereby preventing dismissal of the apportionment complaint. Id. "General Statutes § 52-72 is a remedial statute permitting a plaintiff to amend defects in the return date. Our appellate courts have consistently held that their practice does not favor terminating proceedings without an examination of the merits of the controversy. Furthermore, out Supreme Court has held that a remedial statute such as § 52-72 should be construed liberally so as not to preclude jurisdiction merely because of a defective return date. Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 309, 763 A.2d 1055 (2001)." (Internal quotation marks omitted.) CT Page 8603 Shahnaz v. Patrons Mutual Ins. Co., Superior Court, judicial district of New London, Docket No. CV 0563041 (March 10, 2003, Hurley, J.T.R.).
In the present case, the return date of plaintiff Barbara Caldwell's original complaint is June 6, 2005, and 120 days therefrom is October 4, 2005. The first apportionment complaint did not contain a return date and was served on September 19, 2005. Accordingly, Thames was served with process within 120 days of the return day contained in the original complaint. Even though the second, corrected apportionment complaint contains a return date of October 25, 2005, and was not served until October 11, 2005, the court finds that Thames was on notice of the original apportionment action, has not argued prejudice or undue delay, and that § 52-72 provided the Department with an avenue to correct the return date defect. Accordingly, the court concludes that Thames' first ground for dismissing the apportionment complaint fails.
General Statutes Section 52-46a
Thames also argues that the department has not complied with General Statutes § 52-46a because the department failed to return process to the court at least six days before the return date. Specifically, Thames argues that even if this court finds that the department properly made service of process within the 120 mandate of § 52-102b(a), the department failed to return the process to the court at least six days before the October 25, 2006 return date in accordance with § 52-46a.
Section 52-46a provides: "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." "[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 . . . [O]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period." (Citation omitted; internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998).
In Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), our Supreme Court addressed "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 § 52-46a." Id., 658-59. The plaintiff returned process to the court on the return day. Id., 660. Twenty-four days later the defendant filed a motion to dismiss based on the plaintiff's failure to return process six days before the return day. After the defendant filed its motion to dismiss, the plaintiff filed an amendment to revise the return day in order to satisfy the six-day requirement.
In Coppola the Supreme Court held that § 57-72 permits the amendment of the return date, and it recognized that "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." (Internal quotation marks omitted.) Id., 664-65. The court stated that the "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., 666. The court, however, qualified its decision by stating, "[a] return date may be amended but it still must comply with the time limitations set forth in § 52-48(b) . . . [which] . . . requires that `all process shall be made returnable not later than two months after the date of the process . . .'" Id., 666.
"The date of the process, of course, refers to the date of the writ of summons or attachment which must be accompanied by the complaint. General Statutes §§ 52-45a and 52-45b." (Internal quotation marks omitted.) Haylett v. Commission on Human Rights Opportunities, 207 Conn. 547, 554-55, 541 A.2d 494 (1988); see also Coppola v. Coppola, supra, 243 Conn. 667 n. 12 (date of process is date of writ of summons); Bone v. Estate of Bone, Superior Court, judicial district of New Haven, Docket No. CV 05 4006271 (August 12, 2005, Lopez, J.) ( 39 Conn. L. Rptr. 774, 775) (same).
Conclusion
The court finds that the apportionment defendant's motion to dismiss should be granted because the Department's return of process violates § 52-46a and the department did not request permission to amend the return day of the second apportionment complaint. Assuming the department cured the lack of a return day defect in the first apportionment complaint (dated September 16, 2005) § 52-46a required the process for that complaint to have been returnable no later than November 12, 2005 — no more than two months after the September 16 date of that complaint; and required the process to have been filed by September 10.
As to the second apportionment complaint (dated September 21, 2005) section 52-46a required the process to have been returned to court before October 19, 2005, six days prior to the return day of October 25, 2005. The department, however, returned service on December 13, 2005, fifty-five days after October 19, 2005. The department did not file an amendment to revise the return day in order to satisfy the six-day requirement, and even if the department had sought to amend the return day on the second apportionment complaint, the amended return day could not have been later than November 20, 2005, because the date of process on the second apportionment complaint is September 21, 2005. See Coppola v. Coppola, supra, 243 Conn. 666-67 (amendment to a return day must satisfy the two-month statutory requirement set forth by § 52-48(b)).
Accordingly, the court finds that it lacks jurisdiction as to the apportionment complaints. Therefore, the Motion to Dismiss of Thames Valley Council for Community Action, Inc. is granted.