Opinion
FBTCV176068226S
02-06-2018
Dayna M. DAVID v. ITEX CORPORATION et al.
UNPUBLISHED OPINION
OPINION
THIM, JTR
BXI of New England has raised three issues in its motion to dismiss (item no. 105). First, it claims this court lacks jurisdiction because plaintiff Dayna M. David returned process to the clerk of the court three days after the return day in violation of the time limitation in section 52-46a of the General Statutes. Second, BXI claims this court lacks jurisdiction because plaintiff David incorrectly described or identified BXI by using BXI’s trade name or business name in the summons instead of its legal name. Third, BXI claims that plaintiff David failed to properly serve BXI because it served a corporate officer or owner rather than BXI’s agent for service of process. The court finds the issues in favor of plaintiff David.
The first issue pertains to the return day. The civil summons and complaint is dated October 2, 2017. The return day stated on the summons is November 6, 2017. BXI was served on October 6, 2017. The writ of summons and complaint were returned to court on November 9, 2017, three days after the return day. Section 52-46a provides that process in civil actions returnable to the Superior Court shall be returned to the clerk of the court " at least six days before the return day." This defect (late return), if challenged by a defendant and not corrected by the plaintiff pursuant to section 52-72 of the General Statutes, results in this court’s loss of jurisdiction. The plaintiff has attempted to cure the defect by filing an amended summons. Practice Book § 10-59 provides that a plaintiff may amend a writ or complaint within the first thirty days after the return day. After thirty days, the plaintiff must follow the procedure set forth in Practice Book § 10-60.
BXI contends that this particular defect in process can not be corrected under section 52-72 once the six-day period has passed. Such is not the law. Section 52-72 provides, in part, that this court " shall allow a proper amendment to civil process which for any reason is defective." In Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, at 626 (1994), the Supreme Court held as follows: " we reject the defendants’ claim that an amendment to correct a defective return date is ‘proper’ under § 52-72 only if it is sought before the return date has passed."
An amendment must, in the terminology of section 52-72, be a " proper amendment." In the present case, the plaintiff’s amendment fails to comply with the requirement that " all process shall be made returnable not later than two months after the date of process ..." Gen. Stat. § 52-48(b). The date of the original process, as noted above, is October 2, 2017. The return day on the amended summons is December 19, 2017, which is beyond the two-month period. " 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 limit, circumscribes the extent to which a return date may be amended." Coppola v. Coppola, 243 Conn. 657, 666, 707 A.2d 281 (1998).
The defect in the amendment to the return day appears to be curable. The plaintiff could have selected November 21 or 28, 2017, as a return day. At one time, " a plea in abatement" was the plea by which jurisdictional issues were raised. If such a plea was sustained, a plaintiff was allowed, by a statute that has been repealed, a thirty-day period to remedy the defect. There appears to be no reason why the plaintiff should not be allowed such a period to cure the defect in this case. If possible, a court should follow the legislature’s intent, in enacting § 52-72, " to reject the draconian result of dismissal of the plaintiff’s cause of action because of a defect involving the return date." Coppola v. Coppola, Id., at 665. The plaintiff will be given a thirty-day period to cure the defect.
The second issue raised by defendant BXI is that plaintiff sued a fictitious entity and cannot now correct this defect. The original writ of summons and complaint identified BXI not as BXI but as Itex Fairfield. In the amended summons, the plaintiff identifies the defendant as New England d/b/a Itex Fairfield. BXI claims that this court lacks jurisdiction because the plaintiff erroneously misdirected its action when it named Itex Fairfield as a defendant, rather than BXI of New England. Plaintiff has filed an amendment to the pleadings that corrects the misdesignation of defendant BXI of New England.
Our Supreme Court and Appellate Court have " held in numerous circumstances that the mislabeling or misnaming of a defendant constituted a circumstantial error that is curable under § 52-123 when it did not result in prejudice to either party." America’s Wholesale Lender v. Pagano, 87 Conn.App. 474, 478, 866 A.2d 698 (2005). Plaintiff David intended to sue BXI. Furthermore, BXI of New England does not claim that it has in any way been misled or prejudiced. It had actual notice of the institution of this action, knew it was the intended defendant, and responded. Under the circumstances, the plaintiff should be permitted to amend the citation. See Andover Limited Partnership I v. Board of Tax Review of the Town of West Hartford, 232 Conn. 392, 655 A.2d 759 (1995).
The third issue is only peripherally mentioned in BXI’s discussion of the above issue. It claims that service " in the hands of Roger Boroway (Owner)" was insufficient, that service had to have been made on its " designated corporate ‘Agent,’ Kiernan J. Costello, Esquire." Service upon any of the persons enumerated in General Statutes § 52-57(c) is sufficient. There is no claim that Roger Boroway is not a person who could be served pursuant to this statute.
The motion to dismiss filed by defendant BXI is denied with the caveat that plaintiff must cure the new defect in the return day.