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Dinatale v. Blue Trail Range Corp.

Connecticut Superior Court Judicial District of New Haven at New Haven
Jul 23, 2008
2008 Ct. Sup. 12096 (Conn. Super. Ct. 2008)

Opinion

No. CV 08-4031580 S

July 23, 2008


MEMORANDUM OF DECISION RE MOTION TO DISMISS


The plaintiffs have brought this action seeking, inter alia, temporary and permanent injunctive relief against the defendants based on their claims that the defendants' use of their property as a firing range is causing and has caused damage to their property and that it creates a risk of serious physical injury and emotional distress. The case came to this court on June 4, 2008, when the plaintiffs filed their application for temporary injunction and order to show cause along with their one-count complaint. This court received the papers on June 5, 2008 and issued an order that the defendants be summoned to appear on July 21, 2008 to show cause why a temporary injunction should not issue. The court further ordered that service be made on or before July 1, 2008.

What the plaintiffs apparently failed to appreciate was that the return day listed on the complaint was June 24, 2008. When the plaintiffs made service on the defendants, which they did on June 22, 2008, they were well within the time frame set forth by this court when issued the order to show cause. Because service was made just two days before the return day recited in the complaint, however, the plaintiffs failed to comply with General Statutes Sec. 52-46, which requires service at least twelve days before the return day. Based on this claimed lack of personal jurisdiction, the defendants have now moved to dismiss pursuant to Practice Book Sec. 10-31(a)(5).

The plaintiffs object to the motion to dismiss. They do not dispute the fact that service of the complaint did not comply with Sec. 52-46, but they point out that on July 3, 2008, they filed and served what purports to be an amendment of the return day as of right, making the return day July 15, 2008 rather than June 24, 2008. In doing so, they contend that, having filed the amendment within the first thirty days after the original return day, they are merely amending a "defect, mistake or informality in the writ, complaint or petition" in accordance with Practice Book Section 10-59. They also cite General Statutes Sec. 52-72, which provides that a court "shall allow a proper amendment to civil process which has been made returnable to the wrong return day . . ." They further rely on Concept Associates Ltd v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994), which enunciated a fairly broad policy of liberally construing General Statutes Sec. 52-72 "in favor of those whom the legislature intended to benefit." They also argue that, having been served in advance of the return day, and, more significantly, well in advance of the order to show cause hearing, the defendants were fully aware of the existence of the proceedings and have not been prejudiced in any way by the plaintiffs' effort to amend the return day.

The defendants seek to limit the applicability of General Statutes Sec. 52-72 to cases where the complaint was made returnable on a day other than a Tuesday, as was the case in Concept Associates Ltd. supra, (a Thursday), and Haigh v. Haigh, 50 Conn.App. 456, 717 A.2d, 837 (1998) (a Monday). They suggest that this construction reflects the true meaning of a "wrong" return day, unlike the situation here, in which the plaintiffs set for themselves return day whose service requirements they did not meet.

In Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998), however, the Supreme Court made it clear that the statute was not to be construed so narrowly, concluding hat the legislature, in enacting Section 52-72, had "expressed an intent to reject the draconian result of a dismissal of the plaintiff's cause of action because of a defect involving the return date." That case involved a complaint that was timely served, but not returned to court until the actual return day. The Supreme Court ruled that the term "defective," as used in Section 52-72, needed to be given a broad construction in light of the remedial purposes of the statute, a view consistent with other Supreme Court pronouncements on the issue. "Statutes such as Section 52-72 were intended to take the sharp edges off the common law . . ." Concept Associates, Ltd v. Board of Tax Review, Id. "Centuries ago, the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country . . . and has affected the development of procedural law in this state . . . [H]owever, 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 fallibilty 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." Andrew Ansaldi Co. v. Planning and Zoning Commission, 207 Conn. 67, 75-76, 540 A.2d, 59 (1988) (Shea, J. concurring). Sec. 52-72 is one of those reforms.

Other than having been inconvenienced by having to bring this claim of lack of personal jurisdiction to the court's attention, the defendants have not claimed that the defective return day and its subsequent amendment have deprived it of any substantive rights. It is also undisputed that the defendants received actual notice of the cause of action and suffered no prejudice as a result of the late service.

For all these reasons, the court concludes that under the circumstances of this case, the defect sought to be cured by the plaintiffs' amendment is indeed encompassed by General Statutes 52-72. The motion to dismiss which is based on that defect is therefore denied.


Summaries of

Dinatale v. Blue Trail Range Corp.

Connecticut Superior Court Judicial District of New Haven at New Haven
Jul 23, 2008
2008 Ct. Sup. 12096 (Conn. Super. Ct. 2008)
Case details for

Dinatale v. Blue Trail Range Corp.

Case Details

Full title:PASQUALE DINATALE ET AL. v. BLUE TRAIL RANGE CORP. ET AL

Court:Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Jul 23, 2008

Citations

2008 Ct. Sup. 12096 (Conn. Super. Ct. 2008)
45 CLR 829