Szeligowski v. Lowe's Cos.

Full title: ANNE SZELIGOWSKI v. LOWE'S COMPANY INC

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

Date published: Jan 23, 2007

2007 Ct. Sup. 1443 (Conn. Super. Ct. 2007)

42 CLR 714

Opinion

No. CV06-5004607S

January 23, 2007

MEMORANDUM OF DECISION

WILLIAM HOLDEN, JUDGE.

In this case the defendant, Lowe's Companies, Inc., moves to dismiss the action on the grounds that the court lacks subject matter jurisdiction because the plaintiff's complaint is in violation of General Statutes § 52-48(b) in that the return date was more than two months after the date on the writ, and violates § 52-46a because process was not returned at least six days prior to the return date.

FACTS

In her complaint, the plaintiff Anne Szeligowski, alleges the following facts. On May 4, 2004, the plaintiff was injured, while at a store operated by the defendant Lowe's Companies, Inc., when a can of stain fell from a display and hit her leg. As a result of this, the plaintiff suffered various injuries. The proximate cause of her injuries was the negligent manner in which the defendant constructed and maintained the display.

The plaintiff's writ of summons is dated April 20, 2006. The return date on the complaint is June 27, 2006. Process was returned on June 22, 2006. The defendant filed a motion to dismiss, with an accompanying memorandum of law on July 5, 2006. The plaintiff filed a memorandum in opposition on September 15, 2006, and oral argument was heard on September 18, 2006.

DISCUSSION

"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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).

The defendant argues that the plaintiff's complaint violates General Statutes § 52-46a¹ because process was not returned to the court at least six days prior to the return date, and that in violation of § 52-48 (b),² the service of process was not timely, in that the return date was more than two months from the date of the process. The plaintiff admits that the compliant and return date violate §§ 52-46a and 52-48(b), but nonetheless, objects to the motion to dismiss and relies on the holding of Coughlan v. Murphy, 134 Conn. 601, 59 A.2d 729 (1948), which case allows a return date to be beyond the two-month requirement of § 52-48(b).

1 General Statutes § 52-46a states in relevant part: "Process in civil actions returnable to the Superior Court . . . [shall be returned to] the clerk of such court at least six days before the return day."

2 General Statutes § 52-48(b) states: "All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held."

"[T]he 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 proceeding voidable, rather than void, and subject to abatement." Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998). In Coppola, the process was returned on June 22, 2006, less than six days prior to the return date, and therefore did not meet the requirements of § 52-46a. Section 52-72(a), however, allows the amendment of civil process which has been made returnable to the wrong day.³ Therefore, if compliance with § 52-46a was the only issue, the plaintiff would be able to amend the return date.

3 General statutes § 52-72(a) states: "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, upon payment of costs taxable upon sustaining a plea in abatement."

The plaintiff made the process returnable on June 27, 2006, more than two months after April 20, 2006, the date of the writ of summons. First, in order to amend the return date as allowed by § 52-72(a), a plaintiff must affirmatively move to amend the return date. See McEvoy v. Plancher, supra, 38 Conn. L. Rptr. 888; Batura v. Turk, supra, 35 Conn. L. Rptr. 511; Lestor v. Mangar, supra, 32 Conn. L. Rptr. 480 (holding that the fact that the plaintiff did not request to amend the return date was one reason why the plaintiff could not amend the complaint pursuant to § 52-72(a)). In the present case, the plaintiff has not sought to amend the return date to meet the requirements of § 52-46a or § 52-48(b). Second, it would be impossible to amend the return date to comply with both §§ 52-46a and 52-48(b).

Although "[r]ecent superior court holdings . . . support . . . a liberal interpretation of [§ 52-72(a)] . . . Superior [C]ourt cases that did not allow an amendment of the return date when the request to amend was made after the two-month period had expired did so only because it was impossible to amend the return date to comply with the two-month limitation set by § 52-48(b), and twelve-and six-day time requirements set by § 52-46 and § 52-46a, respectively. See Batura v. Turk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02400165 (September 18, 2003, Rush, J.) ( 35 Conn. L. Rptr. 509); Lestor v. Mangar, Superior Court, judicial district of Danbury, Docket No. CV 01 0344146 (July 10, 2002, Doherty, J.) ( 32 Conn. L. Rptr. 479); Brague v. Nightingale, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 000087593 (October 11, 2002, DiPentima, J.)." (Citations omitted.) McEvoy v. Plancher, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 040199239 (March 14, 2005, Tyma, J.) ( 38 Conn. L. Rptr. 887, 889).

Therefore, arguendo, if the plaintiff had sought to amend the complaint, § 52-72(a) would not save the complaint. "A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b). Section 52-48(b) requires that [a]ll process shall be made returnable not later than two months after the date of the process . . . Section 52-48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended." (Internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 666-67. Thus, the court in Coppola v. Coppola "made [it] clear that a party's ability to amend a return date is not unlimited. The court held that [a] return date may be amended, but it still must comply with the time limitations set forth in § 52-48(b) . . . [which requires] that all process shall be made returnable not later than two months after the date of the process. Id., 666-67." Shallue v. Torres, Superior Court, judicial district of Fairfield, Docket No. CV 064017299 (October 12, 2006, Owens, J.T.R.). Trial courts have consistently recognized that this language "qualified" the holding in Coppola that parties should generally be allowed to amend the return date. See Caldwell v. O'Meara, Superior Court, judicial district of New London, Docket No. CV 05 4002991 (May 9, 2006, Jones, J.); see also Shallue v. Torres, supra, Superior Court, Docket No. CV 064017299; Whyte v. Williams, Superior Court, judicial district of Fairfield, Docket No. CV 054010344 (August 23, 2006, Arnold, J.).

Because process was not returned to the court until after the two-month time limit, the return date cannot be amended to comply with § 52-48(b). In a factually similar case, the court held, "[b]ecause the plaintiff['s] process [was] dated October 29, 2002, and was served on November 13, 2002, [and] she did not return the process to the court until February 6, 2003, it is not possible for her to amend the return date to comply with § 52-48 and dismissal of the action is warranted. See Brague v. Nightingale, Superior Court, judicial district of Litchfield, Docket No. CV 000087593 (October 11, 2002, DiPentima, J.), and Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. CV 980547104 (August 11, 1999, Martin, J.) (25 Conn. L. Rptr. 254)." Batura v. Turk, supra, 35 Conn. L. Rptr. 511. In the present case, the complaint was returned on June 22, 2006; amending the return date to comply with § 52-46a would make the return date July 4, 2006, thus putting the return date further past the two month requirement of § 52-48(b).⁴

4 As a result of process being returned to the court on June 22, 2006, the return date would have to be changed from June 27, 2006, to July 4, 2006, the following Tuesday, in order for the filing date to be at least six days prior to the return date and to comply with § 52-48(a), to be a Tuesday.

The plaintiff's reliance on Coughlan v. Murphy, supra, 134 Conn. 601, is misplaced. Coughlan is not analogous to the present case because it involved a probate appeal. Id., 603. Although the appeal papers were not returned to the court in a timely manner or were lost, the court held that probate appeals were governed by a separate statute setting forth a notice provision governing appeals from probate. Id., 604. The court noted that the probate appeal statute "would serve no purpose if the appeal must be served in the same manner as ordinary civil process. Id. The present case is not a probate appeal. Accordingly, the court's holding in Coughlan is not relevant.

The plaintiff has not pointed to any cases that have interpreted Coughlan v. Murphy to allow a return date to be beyond the two-month requirement. The court's search for cases supporting this premise has also not borne fruit. Moreover, the Superior Court has distinguished Coughlan v. Murphy from regular civil cases involving § 52-48 (b) or § 52-46a issues; See Loe v. Dow Corning Corp., Superior Court, judicial district of Waterbury, Docket No. CV 92 0041809 (February 24, 1995, Vertefeuille, J.) ( 13 Conn. L. Rptr. 519.) ("Nowhere in the [ Coughlan v. Murphy] decision is there any discussion of the issue . . . which is whether General Statutes § 52-46a . . . requires a dismissal of a case where there has been a late return.") Therefore, although courts should liberally allow the amendment of the return date, the return date still must fall within the two-month requirement of § 52-48(b). Batura v. Turk, supra, 35 Conn. L. Rptr. 511.

CONCLUSION

Based upon the foregoing the motion to dismiss is granted.