Opinion
No. CV 08-4031857
January 16, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiffs have appealed a decision of the zoning board granting a variance to the codefendant 107 Longshore Lane, LLC (the defendant). The defendant Long Shore Lane has filed a motion to dismiss pursuant to Practice Book § 10-30 and § 10-31. The motion to dismiss is based on two separate grounds.
I
The defendant argues the motion should be granted pursuant to § 52-46a of the general statutes. That stature reads as follows:
§ 52-46a. Process in civil action returnable to the Superior Court shall be returned to its clerk at least 20 days before the return date and if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return date.
The facts supporting the motion are set forth in the defendant's brief. There it says that the "appeal dated May 28, 2008 was returnable June 24, 2008. According to the clerk-stamped copy of the plaintiff's citation . . . the appeal was filed on June 18, 2008, the sixth day prior to the return date. Caselaw is clear (states the defendant) that the return date itself cannot be included to calculate the six (6) days prior to the return date. The appeal therefore needed to be returned by June 17, 2008."
Coppola v. Coppola, 243 Conn. 657 (1998) held that the requirements of § 52-46a are mandatory and failure to comply with its requirements renders the proceedings voidable rather than void and subject to abatement, id., pp. 661-62. The court went on to hold that a motion to amend the return date could be filed under the remedial statute, § 52-72. The court held this would not render § 52-46a meaningless; amended process must comply with § 52-46a and under § 52-48(b) "all process must be made returnable not later than two months after the date of process." Thus the court held that "Section 52-48(b). . . with its two-month time limit circumscribes the extent to which the return date may be amended," id., pages 667-68.
A question of personal not subject matter jurisdiction is involved because of the fact that the action is only voidable; in other words the defendant could have waived late service but chose not to do so. Lack of subject matter jurisdiction can not be waived so the only other lack of jurisdiction in the universe defined by Practice Book § 10-31, is lack of jurisdiction over the person.
No motion to amend the return date was made and the time for so doing has passed. But the court agrees with the plaintiffs that no such motion was necessary. As the defendant notes Nowell v. Nowell, 24 Conn.Sup. 314 (1963) interpreted § 52-47, the present § 52-46a, and held that in computing the last day process can be returned, the return date is excluded. But Nowell also held that in calculating the time period although the return day is excluded, the day of the return of process was to be included. That would make June 18th the last day to return process and process was returned June 18, 2008. The defendant basically argues that six full days are required for a valid return of process, however. But no full-day requirement can be deduced from the language of the statute — it is an either or proposition, the day is included or excluded in determining any calculation. There is no appellate authority on this question but Nowell's reasoning is persuasive at least to this court. Nowell compared § 52-47 to § 52-46 of the general statutes which provides that if civil process is returnable to the superior court it shall be "at least twelve days, inclusive, ". . . before the day of the sitting of the court. From ancient times our court has held in calculating the time for service of process the day of service is to be counted and the first court date (return date) is to be excluded, Spencer v. Champion, 13 Conn. 10, 16 (1838). Why should the method of calculating time for return of process be any different? The practice should be uniform in interpreting the time periods in both statutes lest these simple time calculation be turned into a trap for the unwary.
II
The defendant also argues that service on Long Shore Lane, LLC was not effected within 15 days of the date of the publication of the zoning decision. Section 8-8b of the general statutes does provide that:
CT Page 2210
Appeals shall be commenced by service of process in accordance with subsection (f) and (g) within fifteen days from the date that notice of the decision was published as required by the general statutes.
Subsection (f)(2) of § 8-8 states that for any appeal taken after October 1, 2004 process shall be served pursuant to § 52-57(b)(5) upon any agency, department or board or municipality of a town or borough. Service on the defendant 107 Long Shore must be made in accordance with the requirements of service upon limited liability companies pursuant to § 52-57. The defendant's factual argument proceeds as follows:
Here, as evident by Exhibit B, Marshal Frank Baldo made service upon 107 Longshore by certified mail depositing the same in the mail on May 29, 2008. See Exhibit B. According to the complaint, the zoning decision was published in The Source newspaper on May 15, 2008. Thus, within fifteen (15) days would require service upon 107 Longshore by May 29, 2008 and not on the fifteenth day on May 30, 2008. Here, as evidenced by Exhibit D, National Corporate research Ltd. Indicates that service upon the statutory agent was affected on May 30, 2008. See Exhibit D attached hereto and made a part hereof. (Service apparently by Federal Express.)
The defendant goes on to argue § 34-224 of the general statutes requires an agent for service be appointed by a limited liability company and § 33-663 states service on a corporation can be accomplished by certified mail but is only "effective upon (1) the date the corporation receives the mail; (2) the date shown on the return receipt; or (3) five days after mailed on the United States." Thus it is argued whether the May 30, 2008 date the defendant received the mail via Federal Express is used or five days after it was mailed is used as the controlling date the defendant was not served within 15 days of May 15th. Dupont v. PZ Comm. of Stamford, 156 Conn. 213 (1968), is cited for the proposition that failure to give proper notice constitutes a jurisdictional defect.
One matter is somewhat confusing to the court. The marshal's return said he mailed the process to the defendant's agent for service May 28, 2008. Another document attached to the defendant's motion is entitled "Notice of Service of Process." It indicates the process was sent via certified mail but through Federal Express and was received May 30, 2008. Query was this one and the same mailing? Did the marshal send the letter via certified mail using the U.S. postal system and Fed. Ex. or is his reference in the return to only one certified mailing through Fed Ex. Although subsection (a) of § 33-663 speaks of notice effected by any proper officer or person lawfully empowered to make service subsection (c) says the statute does not prescribe the "only means or necessarily the required means of serving a corporation." And there seems no dispute the corporation received process on May 30, 2008.
The court cannot accept the defendant's position for several reasons. For one thing § 8-8(g) of the statute explicitly says: "failure to make service within fifteen days on parties other than the board shall not deprive the court of jurisdiction over the appeal." There appears to be no dispute that service upon the board was within the fifteen-day period. Subsection (g) provides its own mechanism for bringing other parties into the litigation and the appeal may be dismissed only upon a showing of prejudice. In any event even if the 15-day requirement as to the defendant corporation was not met the court retains jurisdiction over the appeal.
Furthermore the appeal under § 8-8(a) must be commenced "within fifteen days from the date that notice of the decision was published." The use of the word "within" is controlling for a proper interpretation of the 15-day period. The plaintiff cites Lamberti v. Stratford, 131 Conn. 396, 398 (1994), which was an action brought under a predecessor statute to § 13-149. That case noted the use of the word "within" was important in determining whether notice was given to a town clerk within ten days of an injury. In statutes of this type the court said it is "well settled that the day of the act from which a future time is to be ascertained is to be excluded from the computation." Whether the terminal date is excluded depends on the statute's language. The court held the day of injury was excluded "and the tenth day thereafter was fixed as the final date upon which valid notice could be given," id., Pages 397-98. The day of publication here was May 15, 2008; it appears the corporation received the process on May 30th. Having gone to law school in part to avoid mathematics even the court can ascertain May 30th lies within 15 days after May 15th.
Finally the court is not bound to follow its own opinions but sees no reason to depart from the position it adopted in Tayco Corp. et al. v. Wallingford PZ Comm., 2006 Ct.Sup. 12603. There the court held even where the appeal was served on the defendant more than fifteen days after published notice of the decision, § 52-293a saved the action from dismissal. There is no dispute apparently that the marshal received the appeal May 28, 2008 because that is the day he served the town in hand.
The statute provides that the right of action is not lost where the process is served within thirty days of delivery to the Marshal. It does not apply to § 4-183 appeals from administrative agencies, but this is an appeal pursuant to § 8-8 of the general statutes. Thus the action is saved under § 52-593 even if the operative date is five days after May 28, 2008 when the appeal was mailed to the corporation according to the return. The corporation received the process May 30, 2008.
For the foregoing reasons the motion to dismiss is denied.