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RUFF v. RIEDL

Connecticut Superior Court Judicial District of Hartford at Hartford
Oct 6, 2008
2008 Ct. Sup. 16061 (Conn. Super. Ct. 2008)

Opinion

No. CV08-4034568S

October 6, 2008


MEMORANDUM OF DECISION ON MOTION TO DISMISS (102.0)


The defendant has moved to dismiss the plaintiffs' action, because he alleges that they failed to serve him with process at least twelve days before the return date as required by General Statutes § 52-46, and that they failed to return process to the court at least six days before the return date, as required by General Statutes § 52-46a.

General Statutes § 52-46 provides: "Civil process, if returnable to the Supreme Court, shall be served at least thirty days, inclusive, before the day of the sitting of the court, and, if returnable to the Superior Court, at least twelve days, inclusive, before such day."

General Statutes § 52-46a provides in relevant part: "Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day 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 day."

The plaintiffs maintain that under General Statutes § 52-128 and Practice Book § 10-59, they have a right to amend the complaint in order to correct any defects in the return day, a right which they have attempted to exercise by changing the return date in the amended complaint from January 1, 2008 to January 29, 2008. This amended return date would comply with § 52-46 and § 52-46a, as it would be more than twelve days after the service of process on the defendant and more than six days after the date that process was returned to court. Section 52-128 provides that "[t]he plaintiff may amend any defect, mistake or informality in the writ, complaint . . . which might have been originally inserted therein, without costs, within the first thirty days after the return day . . ." As further support, the plaintiffs point to § 52-72(a), which provides that "[a]ny 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 . . ."

General Statutes § 52-128 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition . . . within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court . . ."

Practice Book § 10-59 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint . . . during the first thirty days after the return day."

In Coppola v. Coppola, 243 Conn. 657 (1998), our Supreme Court was faced with the question of whether § 52-72 allowed a plaintiff to file an amendment to revise a late return date, in order to satisfy the six-day requirement of § 52-46a. Before deciding that issue, the court noted that "the 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 proceedings voidable, rather than void, and subject to abatement." (Emphasis added.) Id., 661-62. The Court then began its analysis of § 52-72 by reiterating its statutory interpretation of § 52-72, stating 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." Id. 663-64.

The Court went on to state that § 52-72

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 . . . 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 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 principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results . . . 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 quotations marks omitted.)
Id. 664-65. the Court found that "[t]he plaintiff's motion to amend would not deprive the defendant 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., 665.

Several trial courts in our state have subsequently followed the Coppola Court's interpretation of § 52-72, and some have extended its holding to § 52-46 defects. In Dinatale v. Blue Trail Range Corp., Docket No. CV08 4031580 (New Haven J.D., July 23, 2008) (Silbert, J.) [45 Conn. L. Rptr. 829], the plaintiffs had provided a return date of June 24, 2008 and service was not made on the defendants until June 22, 2008. The plaintiffs acknowledged their original complaint failed to comply with § 52-46, but filed and served an amendment which changed the return date to July 15, 2008. The plaintiffs contended that because they had filed the amendment within the first thirty days after the original June 24, 2008 return day, they were merely amending a "defect, mistake or informality in the writ, complaint or petition" as was their right under Practice Book § 10-59 and General Statutes § 52-72.

Relying on Coppola, as well as its finding that the defective return date and its subsequent amendment would not deprive the defendant of any substantive rights, the court found that the defect sought to be cured by the plaintiffs' amendment was encompassed by § 52-72, and thus the defendants' motion to dismiss should be denied. The court further noted that "[o]ther 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 it 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." Id.

Unlike the plaintiffs in Coppola and Dinatale, who had filed motions to amend the return day, the plaintiffs in the present action have attempted to correct their improper return date by filing an amended complaint, which contains a return date which would cure the defect. The defendant argues that this was improper, as an amended complaint cannot correct defects in process. The defendant's argument relies on his assertion that process, and not the complaint, establishes the return day. He maintains that if the plaintiffs had wished to properly amend the return day, they should have filed a motion to amend the return day, as the plaintiffs in Dinatale and Coppola did.

In Bernardo v. Correira, Docket No. CV 07 5008270 (Fairfield J.D., October 30, 2007) (Hiller, J.), the court allowed the plaintiff to amend the return day by filing an amended complaint that contained a proper return day. The plaintiff had timely served the plaintiff with process but had failed to comply with § 52-46a by filing the summons, complaint and marshal's return with the court six days after the return date. In relying upon § 52-72 and its liberal construction in Coppola, as well as the court's finding that the plaintiff would suffer no prejudice as a result, the court denied the defendant's motion to dismiss and allowed the amended complaint to establish a proper return date. In fact, the court stated that "[t]he plaintiff is eligible to amend his return date in accordance with the Coppola decision and has properly requested to do so." (Emphasis added.) Id.

The defendant also argues that even if the amended complaint can constitute amended process, the plaintiffs failed to perfect their amendment of the return date by not re-serving him with the amended complaint. When an amended complaint, whose only difference from the original complaint is an amended return date, formal service is not necessary. In Town of Simsbury v. Silver, Docket No. CV 05 4013487 (Hartford J.D., October 3, 2006) (Satter, J.T.R.), the court held that "when the defendants have been served by abode service of a previous amended complaint and have appeared, then Practice Book §§ 10-12 and 10-13 apply which permit delivering a copy of the amended complaint or by mailing it to the last known address of the attorney or the party." Id.

Based on the foregoing, the motion to dismiss the plaintiffs' amended complaint is denied.


Summaries of

RUFF v. RIEDL

Connecticut Superior Court Judicial District of Hartford at Hartford
Oct 6, 2008
2008 Ct. Sup. 16061 (Conn. Super. Ct. 2008)
Case details for

RUFF v. RIEDL

Case Details

Full title:ANNETTE RUFF ET AL. v. ROY RIEDL

Court:Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Oct 6, 2008

Citations

2008 Ct. Sup. 16061 (Conn. Super. Ct. 2008)
46 CLR 448

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