Opinion
No. CV 06-401 76 40 S
January 22, 2007
MEMORANDUM OF DECISION
I THE FACTS
In these two probate appeals, the Probate Court erroneously set the return date as Wednesday, September 20, 2006. On October 25, 2006, the defendants, Gregory Hayes and George Heussner, co-conservators of the estate, filed motions to dismiss the appeals on grounds of insufficient service of process and lack of personal jurisdiction.
"Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month." General Statutes § 52-48(a).
On December 15, 2006, the plaintiff requested the Probate Court, Caruso, J., to amend the original return date. The Probate Court complied and set an amended return date of January 16, 2007. The plaintiff then filed an amended summons on January 4, 2007 with the Superior Court directing service on all defendants — Gregory Hayes, George Heussner, James Stewart and S. Giles Brody.
Prior to this date, the plaintiff had not served George Heussner. Her first attempt at service was at an incorrect address.
II DISCUSSION
"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) . . . with its two month limit, circumscribes the extent to which a return date may be amended." (Internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 666-67, 707 A.2d 281 (1998); see also Batura v. Turk; Superior Court, judicial district of Fairfield, Docket No. CV02 400165 (September 18, 2003, Rush, J.) ( 35 Conn. L. Rptr. 509). While a return date may be amended, "it still must comply with the time limitations set forth in § 52-48(b)." Coppola v. Coppola, supra, 243 Conn. 666.
Section 52-48(b) provides in relevant part: "All process shall be made returnable not later than two months after the date of the process . . ." "The date of the process, of course, refers to the date of the writ of summons or attachment which must be accompanied by the complaint." (Internal quotation marks omitted.) Haylett v. Commission on Human Rights Opportunities, 207 Conn. 547, 554-55, 541 A.2d 494 (1988).
This rule applies to probate appeals. See Webster Bank N.A. v. Bowen, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4004301-S (April 11, 2006, Wiese, J.) (noting return date was within two-month deadline); Connecticut Dept of Social Services v. Carpenter, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390240 (May 21, 2003, Doherty, J.) ( 34 Conn. L. Rptr. 700) (defective return date in probate appeal can be cured by amendment pursuant to § 52-72 provided actual return of process complied with statutory requirements); Allen v. Appeal from Probate, Superior Court, judicial district of Fairfield, Docket No. 396624 (March 4, 2003, Levin, J.) ( 34 Conn. L. Rptr. 199, 200) (plaintiff's proposed amended return date was more than two months after defendants were served therefore violating § 52-48(b)); Kozek v. Rotella, Superior Court, judicial district of New London, Docket No. 98 547326 (February 5, 1999, Mihalakos, J.) ( 24 Conn. L. Rptr. 70, 72) ("trial court cannot make an amendment to a defective return date when such an amendment would exceed the [two month] limit set forth in General Statutes § 52-48(b)").
Section 52-72(a) provides in relevant part: "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 . . ."
"[I]n light of General Statutes § 52-48(b) and Coppola [v. Coppola, supra, 243 Conn. 657], if a return of process defect involves a [plaintiff's] failure to return process to court within two months after service on the defendant, such a defect implicates the court's subject matter jurisdiction . . . This rule applies to probate appeals." (Citations omitted; internal quotation marks omitted.) Allen v. Appeal from Probate, supra, 34 Conn. L. Rptr. 200; see also Connelly v. Wendover Financial, Superior Court, judicial district of Waterbury, Docket No. 020168999 (March 13, 2002, West, J.) ( 31 Conn. L. Rptr. 523, 524); Archie v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. 99 0430379 (January 13, 2000, Fracasse, J.) ( 26 Conn. L. Rptr. 330); but see Connecticut Dept. of Social Services v. Carpenter, supra, 34 Conn. L. Rptr. 700 , citing Allen v. Appeal from Probate, supra, 199.
CONCLUSION
As the amended return date of January 16, 2007 set in the December 15, 2006 decree is untimely pursuant to § 52-48(b), the defendants' motion to dismiss is granted.