Opinion
No. CV04 041 04 81
September 3, 2004
Pursuant to Connecticut General Statutes 52-72, the plaintiff seeks to amend the return date in the instant appeal from a probate decree rendered November 5, 2003.
Connecticut General Statutes 52-72 provides:
(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, upon payment of costs taxable upon sustaining a plea in abatement.
(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.
This action commenced in the probate court for Fairfield, Connecticut. There the court, Caruso, J., issued an order whereby the court approved the sale of real property belonging to the estate of Albert Garafalo. The plaintiff in this action, Althea Dinan, is a beneficiary of the Garafalo estate. On December 4, 2003 the probate court granted the plaintiff's request for permission to appeal that decision. The probate decree authorized January 6, 2004, a date selected by the plaintiff, as the return date. The plaintiff served the decree and appeal on the various defendants on December 10, 11 and 17, 2003.
On January 15, 2004 the plaintiff delivered the instant action to the Superior Court for the Judicial District of Fairfield. The paperwork accompanying the appeal did not contain the requisite filing fee. It incorrectly listed a February 17, 2004 return date. Consequently, the papers were returned on March 1, 2004.
There is a question concerning when the clerk's office notified the plaintiff that she had not provided the requisite filing fee. Notice was mailed March 1, 2004.
On March 12, 2004 the plaintiff filed the instant Motion to Amend Return Date and Allow Appeal or In the Alternative to Re-File Appeal from Probate. The defendant, administrator of the estate of Albert Garafalo, has objected to this request. The defendant has also filed a Motion to Dismiss wherein he alleges that the instant decree and appeal were not returned to court as required by statute. This court heard oral argument for both motions on August 30, 2004.
Connecticut General Statutes 52-46a provides:
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 in summary process actions, to the clerk of such court at least six days before the return day.
Insofar as the defendants have challenged the jurisdiction of this court, the court will address the motion to dismiss first. "A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 246 Conn. 766, 773, 826 A.2d 138 (2003). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). It "admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000). "[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). Whether subject matter jurisdiction exists is a question of law. (Citations omitted.) McIntosh v. Sullivan, 77 Conn.App. 641, 644, 825 A.2d 207 (2003), cert. granted, 266 Conn. 926 (2003).
Plaintiff's motion to amend the return date in this matter is based upon the premise that the judicial clerk who accepted this appeal should have advised the plaintiff that a filing fee was required. The plaintiff proposes "Whether or not the papers were returned to court at the proper time or in the form deemed appropriate by the Clerk's office, the Clerk's office should have accepted them for filing when they were presented and, indeed, initially did so on January 15, 2004." The plaintiff further suggests that if this appeal was not filed in a timely manner, a new appeal can be prosecuted pursuant to the accidental failure of suit statute, Connecticut General Statutes 52-592.
The issues presented by both parties are controlled by the Connecticut Supreme Court's decision in Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985). There the Court noted that a motion is not filed unless the litigant pays the required filing fee. See also Yanow v. Teal Industries, Inc., 196 Conn. 579, 583 n. 2, 494 A.2d 573 (1985); Reiman v. Blair, No. CV93-0527722, Superior Court, Judicial District of Hartford-New Britain at Hartford (February 16, 1994, Mulcahy, J.) ( 11 Conn. L. Rptr. 80).
A probate appeal is a civil action. Bergin v. Bergin, 3 Conn.App. 566, 568, 490 A.2d 543 (1985). As with all civil actions, a probate appeal must be returned to court at least six days before the return date. Bergin, 3 Conn.App. at 568. A late return of the process does not render an action void, but simply voidable. Bergin, 3 Conn.App. at 569. Any defect in service cannot be cured by amendment. Bergin.
The plaintiff cannot overcome this defect by simply amending the return date. There is no pending action to amend.
The date of process, of course, refers to the date of the writ of summons or attachment that must be accompanied by the complaint . . . Although "[a] return date may be amended . . . it still must comply with the time limitations set forth in § 52-48 . . . Section 52-48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended . . . Thus, although the Appellate Court has held that a plaintiff may utilize § 52-72 to amend a return date to comply with § 52-48; . . . the amended date, however, must be within two months of the date of process . . .
Batura v. Turk, No. CV02 40 01 65 S, Superior Court, Judicial District of Fairfield at Bridgeport. (September 18, 2003, Rush, J.) ( 35 Conn. L. Rptr. 509).
In the present case plaintiff's process was dated January 6, 2004, and was served on December 10-17, 2003. She has not yet returned the matter to court. It is not possible for her to amend her return date and still comply with mandatory statutory restrictions.
When prosecuting a probate appeal, a plaintiff must comply with the provisions of Connecticut General Statutes 52-46a which provides that "An appeal . . . by those . . . who are present or who have legal notice to be present . . . shall be taken within thirty days." Here the plaintiff has not filed that appeal. The defendant has not waived that defect. See Scott v. Estate of Jewell Carson, No. 127161, Superior Court, Judicial District of Waterbury (November 30, 1995, Pellegrino, J.).
Because there was a timely objection in this case, the Court has no alternative but to dismiss this appeal. In a recent Superior Court case involving similar facts to the instant matter, the court dismissed a probate appeal because it was not brought within thirty days of the decree from which it was appealed. See Nyack v. Estate of Anthony Airdo, Superior Court, Judicial District of New Haven at New Haven, Docket No. 326102, (March 3, 1992) (Fracasse, J.).
The plaintiff's motion to amend the return or re-file this probate appeal is denied.
The defendant's motion to dismiss is granted.
DEWEY, J.