Opinion
FSTCV186037451S
02-11-2019
Andrea SIMON v. WITHIN REASON CT, LLC et al.
UNPUBLISHED OPINION
SOMMER, J.
INTRODUCTION AND SUMMARY OF FACTS
This cause of action arises out of a contractual dispute over the sale of the plaintiff’s personal property. On July 24, 2018, the plaintiff, Andrea Simon, filed a twenty-one-count complaint against the defendants, Within Reason CT, LLC, Kelly S. Daniel, Amy Reehl, David L. Johnson, Antique Treasures, LLC, Gretchen M. Johnson, Francis Clay Antiques, Inc. and Francis Merante, alleging the following facts. On August 13, 2017, the plaintiff entered into a contract with defendant, Within Reason CT, LLC, whereby the defendants agreed to sell personal property owned by the plaintiff at 6 Wheeler’s Gate, Westport, as part of a moving sale, which took place on October 6 and 7, 2017. The plaintiff alleges in her complaint that the defendants breached the contract by: (1) failing to pay the plaintiff the agreed upon percentages of proceeds; (2) not distributing the proceeds of the sale within thirty days of completion of the sale; (3) wrongfully assigning its contractual obligations to a third party without the plaintiff’s written consent or without providing notice to the plaintiff; (4) failing to reach an agreement as to how to place leftover items from the sale; (5) not providing a detailed list or accounting of any sales; (6) not properly monitoring the residual sales by defendant Francis Clay Antiques, Inc. and/or Greenwich Auction; and (7) not properly compensating the plaintiff for amounts due for any residual sales or items not sold.
The plaintiff’s claims against the defendants for breach of contract, demand for accounting, bailment, breach of fiduciary duty, conversion and violation of the Connecticut Unfair Trade Practices Act (CUTPA), are not at issue in this motion.
The issues presented are: (1) whether the court should grant the defendants’ motion to dismiss the plaintiff’s complaint on the ground that the court lacks personal jurisdiction over the defendants due to insufficiency of process and (2) whether the court should consider the plaintiff’s untimely objection to the defendants’ motion to dismiss. It is submitted that the court should deny the defendants’ motion because service of process on the defendants was proper, and the court should consider the plaintiff’s objection to the defendants’ motion to dismiss.
When the plaintiff filed her writ of summons and complaint, the plaintiff listed the return date as July 24, 2018. The plaintiff’s counsel subsequently crossed out this date and wrote in July 31, 2018 as the amended return date to allow the Marshall sufficient time to serve process on each of the defendants. The plaintiff’s counsel returned the summons, complaint and return of service on July 24, 2018. Counsel for defendants David Johnson, Antique Treasures, LLC, Gretchen M. Johnson, Francis Clay Antiques, Inc. and Francis Merante, entered her appearance on July 27, 2018 and listed July 31, 2018 as the return date. Counsel for the defendants Within Reason CT, LLC, Kelly S. Daniel and Amy Reehl entered her appearance on August 2, 2018, and also listed July 31, 2018 as the return date. The return of service was dated July 5, 2018. The return of service also provided the date that each defendant was served with process. According to the return of service, defendants Kelly S. Daniel and Amy Reehl were both served on July 6, 2018, and defendant Within Reason CT, LLC was served on July 10, 2018. The remaining defendants were served on July 5, 2018.
On August 28, 2018, both counsel for the defendants filed motions to dismiss (# 101 and # 103) with supporting legal memoranda in which they claim that the court lacks personal jurisdiction over the defendants due to insufficiency of process. On October 11, 2018, the plaintiff filed a memorandum of law in opposition. On October 12, 2018, the defendants then filed an objection to the plaintiff’s objection to the motion to dismiss. In response, the plaintiff filed a reply on October 12, 2018. The motion was heard at short calendar on October 15, 2018.
APPLICABLE LAW AND ANALYSIS
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ... Where, however ... the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Footnote omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Internal quotation marks omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
The defendants first argue that the court lacks personal jurisdiction over them due to insufficiency of process because the summons by having two return dates, thereby lacks any return date, or in the alternative, that the earlier return date applies, and therefore, return of service was untimely. The plaintiff counters that the defendants’ motion to dismiss is improper because the defendants understood that the amended return date of July 31, 2018 applied. The plaintiff further asserts that it is misleading for the defendants to argue that they do not understand which return date applies because defense counsel has since entered their appearances acknowledging July 31, 2018 as the return date. The plaintiff also argues that pursuant to General Statutes § 52-123, the cross out and date change on the summons is, at worst, a circumstantial error and does not prejudice the defendants.
Generally, "[a] defect in process ... such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). "[A] writ of summons ... is an essential element to the validity of the jurisdiction of the court ... [T]he writ of summons need not be technically perfect ... and need not conform exactly to the form set out in the Practice Book ..." (Internal quotation marks omitted.) Feldmann v. Sebastian, 261 Conn. 721, 729, 805 A.2d 713 (2002). "[A]s long as the process served on the defendant comports with the basic statutory requirements, a circumstantial defect will not deprive the court of jurisdiction." Boyles v. Preston, 68 Conn.App. 596, 606, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002).
Section 52-123 provides that "[n]o writ, pleading, judgment or any kind of proceeding in court ... shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." "The purpose of § 52-123 is to afford relief from defects found in the text of the writ itself ... It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects ... Indeed, § 52-123 ... protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties ... The accepted policy is 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 shall be manifest that a strict adherence to them will work surprise or injustice ... 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.) Rocco v. Garrison, 268 Conn. 541, 557-58, 848 A.2d 352 (2004). "In determining whether a defect is merely circumstantial and not substantive, courts have considered, inter alia, whether the defendant had actual notice of the institution of an action and whether the defendant was in any way misled to its prejudice." Bayer v. Showmotion, Inc., 292 Conn. 381, 391 973 A.2d 1229 (2009).
In applying § 52-123 to the present case, it is clear that any discrepancy in the return date was a circumstantial defect because the defendants had actual notice of the cause of action and they were not misled in any way to their prejudice. The defendants had notice because each defendant was properly served with process. Furthermore, the defendants were not misled to their prejudice because both counsel for defendants entered their appearances and listed the return date as July 31, 2018, the amended date. Accordingly, the defendants’ motion to dismiss for insufficiency of process should be denied.
Notwithstanding the discussion of § 52-123, in addressing the defendants’ argument that the original return date, rather than the amended return date applies, our Supreme Court has held that a plaintiff may amend the return date, where it is not possible to return process at least six days before the return date. Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998). General Statutes "§ 52-46a establishes the requirement to return process in civil actions to the clerk of the Superior Court at least six days before the return date. Our Supreme Court has held that the failure to comply with the mandate of § 52-46a renders the proceeding voidable, rather than void, and subject to [dismissal] ... General Statutes § 52-72(a) provides in relevant part that 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 ..." (Citation omitted; internal quotation marks omitted.) Merrill v. NRT New England, Inc., 126 Conn.App. 314, 320-21, 12 A.3d 575 (2011), appeal dismissed, 307 Conn. 638, 59 A.3d 171 (2013). In Coppola, our Supreme Court explained how the term "defective" pursuant to § 52-72(a) is to be interpreted. Coppola v. Coppola, supra, 243 Conn. 665. In that case, the plaintiff served the defendant properly, but returned the process to the court on the return date rather than six days before the return date in violation of § 52-46a. Id., 660. In its interpretation of § 52-72(a), our Supreme Court held that "[t]he 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." (Internal quotation marks omitted.) Id., 665. The Coppola court also provided that "[t]he plaintiff’s motion to amend would not deprive the defendant of 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. It is undisputed that the defendant received actual notice of the cause of action within the statutory time frame, suffered no prejudice as a result of the late return of process, and already had filed an appearance ... We [refuse] to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiff’s cause of action if the pleadings were technically imperfect." (Internal quotation marks omitted.) Id., 666; see Merrill v. NRT New England, Inc., supra, 126 Conn.App. 322 (denying the defendant’s motion to dismiss where the plaintiff amended the return date by crossing out the original and writing in the new date in order to comply with § 52-46a).
In the present case, the plaintiff’s counsel amended the return date from July 24, 2018 to July 31, 2018 to comply with the six-day statutory requirement under § 52-46a. In accordance with Coppola, the plaintiff’s amendment to the return date did not prejudice the defendants in any way because the cross out of the original return date and handwritten amended return date were included on each of the summons served on the defendants. Additionally, the complaint provides that the return date was July 31, 2018, the return date was entered into the court system as July 31, 2018, and counsel for the defendants entered appearances on July 27, 2018 and August 2, 2018. These appearance dates are timely under the amended return date. Accordingly, it is submitted that the court should deny the defendants’ motion to dismiss.
The defendants also argue that there was insufficiency of process because the date listed on the top of the return of service pre-dates the date by which certain defendants were served with process. The plaintiff counters that July 5, 2018, the date listed at the top of the return of service, was the date that service on the defendants was commenced and that the subsequent dates listed on the return of service for certain defendants were the dates by which these defendants were served.
The defendants’ argument that the plaintiff’s complaint should be dismissed because of a discrepancy between the date of the return of service and the date of service listed for certain defendants lacks merit. Our Appellate Court has ruled on this issue. See Boyles v. Preston, supra, 68 Conn.App. 596, 606 (2002). In Boyles, the defendant, in a motion to dismiss, argued that the court lacked personal jurisdiction over him because the date appearing at the top of the return of service did not match the date that the defendant was served. Id. In denying the defendant’s motion to dismiss, the Boyles court held that "the defendant could not have been prejudiced or misled by the date appearing at the top of the return indicating that the document was prepared on the day prior to service." Id.
In the present case, the defendants make the same argument made by the defendant in Boyles . The defendants do not contest that they were served on the dates listed on the return of service, but that the date written on the top of the return of service pre-dates the service of process on certain defendants and therefore, makes the return of service improper. In accordance with the holding in Boyles, the defendants in the present case were not prejudiced or misled by the discrepancy between the service of process dates and the date written on the return of service. Accordingly, the defendants’ motion for insufficiency of process should be denied.
The defendants also assert that the court should not consider the plaintiff’s objection to the defendants’ motion to dismiss because it was untimely filed pursuant to Practice Book § 10-31(a). The plaintiff counters that because the defendants were untimely in filing their motion to dismiss and have failed to demonstrate that they will be subjected to any prejudice by the court considering the plaintiff’s objection, § 10-31(a) should be interpreted liberally pursuant to Practice Book § 1-8. Practice Book § 10-30(b) provides that "[a]ny defendant, wishing to contest the court’s jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Section 10-31(a) provides that "[a]ny adverse party shall have thirty days from the filing of the motion to dismiss to respond to the motion to dismiss by filing and serving ... a memorandum of law in opposition ..." "Despite the language of Practice Book § 10-31[a], most courts have exercised discretion to address the merits of a motion to dismiss and to waive the ... requirement when an opposing memorandum was untimely." (Internal quotation marks omitted.) Lobo v. Novak, Superior Court, judicial district of Hartford, Docket No. CV-136040736-S (May 12, 2016, Wahla, J.); Bosco v. Eyelet Tech Nucap Corp., Superior Court, judicial district of Waterbury, Docket No. CV-14-6023433-S (October 10, 2014, Roraback, J.). Practice Book § 1-8 provides that "[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
In the present case, both counsel for the defendants filed their appearances on July 27, 2018, and August 2, 2018. The defendants subsequently filed their motion to dismiss on August 28, 2018 and refiled on August 29, 2018, which is more than thirty days after the filing of the July 27, 2018 appearance. The plaintiff filed her objection to the defendants’ motion to dismiss on October 11, 2018, which is more than thirty days after the filing of the defendants’ motion to dismiss. Pursuant to § 1-8 and in accordance with other superior court decisions where discretion was exercised in waiving the filing requirement of § 10-31(a), it is submitted that the court should waive the filing requirement and consider the plaintiff’s untimely objection to the defendants’ motion to dismiss.
CONCLUSION
The Motion to Dismiss is denied.