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Pinnock v. Children's Dental, P.C.

Connecticut Superior Court Judicial District of New London at New London
Mar 21, 2006
2006 Ct. Sup. 5237 (Conn. Super. Ct. 2006)

Opinion

No. 4003348

March 21, 2006


MEMORANDUM OF DECISION


The plaintiffs, Aryelle Pinnock and Faith Newell, allege two counts sounding in negligence against the defendants, Arthur O. Fox, a doctor of dental medicine, and the Children's Dental Associates of New London County, P.C. The plaintiffs allege that Fox mistakenly performed a root canal on the wrong tooth of Pinnock.

Faith Newell brings this action on behalf of her minor child, Aryelle Pinnock.

Before the court is Fox's motion for summary judgment filed on October 3, 2005. Fox moves on the ground that the plaintiffs' service of the amended process, summons and complaint on August 1, 2005, is beyond the two-year statute of limitations and, therefore, he is entitled to summary judgment. Along with the motion is a memorandum of law in support. On November 17, 2005, the plaintiffs filed a memorandum of law in opposition.

The following facts have been stipulated to by the parties. The alleged malpractice procedure was performed by Fox on February 11, 2003. On January 19, 2005, the plaintiffs were granted a ninety-day extension of the two-year statute of limitations pursuant to General Statutes § 52-190a. The return date of the complaint dated April 26, 2005 was June 7, 2005. Abode service on Fox occurred on May 20, 2005. The summons and complaint was returned to the court on June 2, 2005. By motion dated July 11, 2005, the plaintiff sought to amend the June 7, 2005 return date to June 14, 2005. On August 1, 2005, the plaintiff personally served Fox with her motion to amend the return date and an attached summons and amended complaint which has a return date of June 14, 2005.

The plaintiffs' exhibit C, an affidavit by the state marshal, demonstrates that the plaintiffs' summons and complaint was placed in his hands on April 26, 2005. The marshal is then permitted thirty days to serve process on the defendants, and the action is not lost if served after the statutory period. See General Statutes § 52-593a.

DISCUSSION

"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005).

Fox argues in support of his motion for summary judgment that the plaintiffs' original process was defective and that the plaintiffs' attempt to amend the return date, pursuant to General Statutes § 52-72, established the effective date for statute of limitations purposes as the date the amended process was served on the defendant. As such, the defendant argues, the plaintiffs' service of amended process is beyond the two-year statute of limitation.

The plaintiffs state in their memorandum of law that the summons and complaint were returned to the court five days before the designated June 7, 2005 return date. The plaintiffs state that they tried to cure this one-day-late technicality to allow this case to be tried on the merits, by moving to amend the return date from June 7, 2005 to June 14, 2005, pursuant to Practice Book § 10-59, and also moving to amend the complaint pursuant to § 52-72. The plaintiffs argue, inter alia, that § 52-57(b) does not establish the date the amended process was served on the defendant as the effective date for statute of limitations purposes.

General Statutes § 52-72, provides in relevant part: "(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective . . . (b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form. (c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form . . ."

In Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), the defendant argued, inter alia, that § 52-72 was not intended to amend a return date when that return date was proper and the plaintiff was simply late in returning the process. Our Supreme Court stated that: "[§] 52-72 was originally adopted in 1917. Public Acts 1917, C. 164. Although there is no legislative history available, it appears that the statute was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected . . . Indeed, this court has stated that the purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction . . . The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." (Citations omitted; internal quotation marks omitted.) Id., 663-64.

"Section 52-57 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit . . . [S]tatutes such as § 52-72 were intended to take the sharp edges off the common law . . ." (Internal quotation marks omitted.) Id., 664. "[O]ur 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 . . . The legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date . . . The construction of the term defective to permit an amendment of the return date to correct the plaintiff's failure to return process six days prior to the return day effectuates the statute's remedial purpose and statutory policy of amend[ing] . . . otherwise incurable defects that go to the court's jurisdiction." (Citations omitted; internal quotation marks omitted.) Id., 664-65.

"Furthermore, such an interpretation is consistent with our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it will work surprise or injustice . . . Rules are a means to justice, and not an end in themselves . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Citations omitted; internal quotation marks omitted.) Id., 665. Accordingly, the Supreme Court allowed the amendment of the return date to allow the plaintiff to satisfy the six-day requirement of General Statutes § 52-46a.

In Danziger v. Shakaitis, Superior Court, judicial district of Middlesex, Docket No. 61768 (June 23, 1992, Austin, J.) ( 7 C.S.C.R. 865) ( 6 Conn. L. Rptr. 594), the court was faced with a similar issue as in the present case. In Danziger, the plaintiff filed a writ, summons and complaint containing an improper return date that fell on a Wednesday. The plaintiffs requested leave to amend the return date to fall on a Tuesday. The amended writ was then served on the defendant outside the two-year statutory time period allowed by General Statutes § 52-584. The defendant moved for summary judgment and argued that the court did not take jurisdiction over the action until the date of the service of the amended writ and the statute of limitations had, by then, already run.

The Danziger court held that "[i]n order to give meaning to each phrase and clause in General Statutes [§] 52-72 and to give an overall reasonable interpretation to this section, it is necessary to compare subsection (b) to subsection (c). Subsection (c) provides that under certain circumstances, the rights secured by an attachment or a lis pendens are `preserved or continued' from the date of the improper service until the date of the amended service despite the fact that the court is without jurisdiction due to an improper return date. By contrast, subsection (b) provides that in situations other than those involving an attachment or a lis pendens, the court lacks jurisdiction over the action and nothing is `preserved and continued' until the date the amended writ is served. Once the amended writ is served, however, it has `the same effect . . . as if originally proper in form.' Where neither an attachment nor a lis pendens is in the picture, nothing legally cognizable is in existence between the service of an improper writ and the service of an amended writ, but that upon the service of the amended writ, the original improper writ is deemed to have been `originally proper in form.' Accordingly, the service of the amended writ is deemed to have been made when the service of the original process was made and, therefore, the action was commenced within the period provided by General Statutes [§] 52-584. To hold otherwise would be to place form over substance and defeat the remedial purpose of the statute." Id., 866.

Likewise, in Porter v. Thomas, Superior Court, judicial district of Waterbury, Docket No. CV 97 0137116 (May 6, 1998, Gill, J.) ( 22 Conn. L. Rptr. 141), the plaintiff served the defendants within the applicable statute of limitations. The original return date was improper. The plaintiff was permitted to amend the return date pursuant to § 52-72. The amended return date and re-service were beyond the applicable statute of limitations. The court, relying on Danziger found that, pursuant to § 52-72, the service of the amended writ was deemed to have been made when the service of the original process was made. The court summarily denied the defendants' motion for summary judgment. Id., 142.

Therefore, in accord with the analyses and holdings of Coppola, Danziger and Porter, this court finds that, in the present case, General Statutes § 52-72, allows the plaintiff to amend the return date on the writ and summons, despite the amended service occurring outside the applicable statute of limitations because the service of the amended writ is deemed to have been made when the service of the original process was made. To hold differently would thwart the spirit of § 52-72, work an injustice on the plaintiff, and be in contradiction with our policy preference to bring about a trial on the merits of a dispute whenever possible. Coppola v. Coppola, supra, 243 Conn. 665.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is denied.


Summaries of

Pinnock v. Children's Dental, P.C.

Connecticut Superior Court Judicial District of New London at New London
Mar 21, 2006
2006 Ct. Sup. 5237 (Conn. Super. Ct. 2006)
Case details for

Pinnock v. Children's Dental, P.C.

Case Details

Full title:ARYELLE PINNOCK, PPA FAITH NEWELL v. CHILDREN'S DENTAL ASSOCIATES OF NEW…

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

Date published: Mar 21, 2006

Citations

2006 Ct. Sup. 5237 (Conn. Super. Ct. 2006)
41 CLR 24