Opinion
No. CV99 035 98 69 S
April 15, 1999
MEMORANDUM OF DECISION RE: MOTIONS TO DISMISS (DOCKET ENTRIES 103, 107 AND 114)
The plaintiffs, Real Estate Connecticut and Nicholas H. Fingelly Real Estate (the plaintiffs), filed a six-count complaint against the following defendants: (1) Elliot and Evelyn Koenig, Kenneth Koenig (Koenig); (2) Stephen Lerner (Lerner); (3) Joseph F. McKeon, Joseph F. McKeon, Jr., P.C. (McKeon); and (4) Robert Ashkins and Cohen Wolf, P.C. (Ashkins and Cohen Wolf). The plaintiffs filed their complaint on January 20, 1999 pursuant to the accidental failure of suit statute, General Statutes § 52-592. The complaint bears a defective return date of January 26, 1998.
Ashkins and Cohen Wolf, the Koenigs and McKeon have filed motions to dismiss the plaintiffs' complaint on the grounds that: the return date is invalid; process on the defendants was insufficient; and the plaintiffs' complaint was filed after the one year period allowed pursuant to § 52-592. The plaintiffs have file a motion to amend process, to which the defendants object. The plaintiffs have filed objections to the defendants' motions to dismiss. The matter was heard by the court on March 15, 1999.
Practice Book § 10-31(a) provides: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."
A. Defective Return Date
Defendants Ashkins and Cohen Wolf filed a motion to dismiss (#103) on February 11, 1999, arguing that the defective return date on the summons deprives the court of personal jurisdiction over Ashkins and Cohen Wolf. The plaintiffs filed a motion to amend process (# 105) on February 11, 1999, pursuant to General Statutes § 52-72. Ashkins and Cohen Wolf filed an objection to the plaintiffs' motion to amend process (# 109) on the ground that the request to amend was filed after their motion to dismiss, which the court should consider first.
The issue of the defective return date is also raised by the Koenigs in their motion to dismiss (# 107).
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.
"(c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form. A certified copy of the finding shall be attached to and served with the amended process."
The Koenig defendants have also filed an objection to the plaintiffs' request to amend process (# 110), as have the McKeon defendants (# 121).
The Supreme Court has stated that "`[i]t appears that [§ 52-72] was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected' [and has] also pointed out that `[i]ndeed, this court has stated that the purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction. . . . It determined that `[t]he apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defect of return date.'" (Citations omitted; Internal quotation marks omitted.) Haigh v. Haigh, 50 Conn. App. 456, 464, 717 A.2d 837 (1998).
Therefore, the motion to dismiss for failure to indicate a proper return date should be denied, because the policy behind § 52-72 indicates that an improper return date is the type of error that can be corrected pursuant to § 52-72. Furthermore, the request to amend the return date, which was filed on the same date as Ashkins and Cohen Wolf's motion to dismiss, is timely and is granted).
Since the court lacks personal jurisdiction over the defendants, for reasons which will be discussed below, no costs should be assessed to the plaintiffs pursuant to § 52-72.
B. Accidental Failure of Suit Claims
The Koenigs argue in their "Supplemental Memorandum of Law In Support of Motion To Dismiss" (# 111) that the plaintiffs made service on the Koenigs beyond the one year limitation of the accidental failure of suit statute. This argument is also raised in Ashkins and Cohen Wolf's "Supplemental Memorandum of Law In Support of Motion To Dismiss" (# 116), as well as McKeon's motion to dismiss (# 114).
General Statutes § 52-592(a) provides in pertinent part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction . . . or a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." (Emphasis added.) "In Connecticut, `an action is commenced not when the writ is returned but when it is served on the defendant.' Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974). `This court has long held that an action is brought once the writ, summons and complaint have been served upon a defendant.' Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996). `In our jurisdiction, an action is commenced on the date of service upon the defendant.' Balboa v. Zaleski, 12 Conn. App. 529, 533, 532 A.2d 973 (1987)." Battaglia v. Colonial Condominium Association, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 157598 (March 24, 1998, Karazin, J.) ( 21 Conn. L. Rptr. 572, 574).
According to the docket sheet, the plaintiffs' original action was dismissed on December 12, 1997 pursuant to Practice Book § 251, now Practice Book (1998 Rev.) § 14-3. Real Estate Connecticut v. Koenig, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 322470. The sheriff's return attached to the plaintiffs' complaint in this action indicates that the sheriff served the defendants on December 22, 1998. It is clear that the plaintiffs failed to commence this action within one year from the dismissal of the prior action, and therefore cannot take advantage of the accidental failure of suit statute. Furthermore, the plaintiffs may not take advantage of the saving provision in General Statutes § 52-593a. Pursuant to § 52-593a(a), the plaintiffs were required to deliver process to the sheriff within one year from the date the original action was dismissed, December 12, 1997. Process was not delivered by the plaintiffs until December 14, 1998. (Plaintiffs' Consolidated Memorandum In Support of Their Objections To The Defendants' Motions To Dismiss, Exhibit A, Affidavit of Deputy Sheriff Joan A. Swanson).
The plaintiffs argue in a "Consolidated Response Submitted In Opposition To The Defendants' Motion To Dismiss" filed on April 12, 1999, that the court should conduct a hearing to determine when the original action was "determined" for purposes of applying § 52-592. No such hearing is necessary. The relevant date for "determination" of the original action is the date on which the original action failed, which here is December 12, 1997. See Lovett v. Frankel, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 503526 (January 6, 1992, Schaller, J.) (where complaint and court order granting nonsuit judgment to defendants showed March 21, 1988 to be date on which original action failed, second action brought after March 22, 1989, was not brought within one year after determination of original action).
"While technically a motion to dismiss may not be the proper procedural vehicle by which to raise the applicability of § 52-592, the court may deem the motion an appropriate vehicle if there is no objection. See Armenis v. Brennen, Dichter, Brennan and Comerford, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 333713, (February 13, 1997 Maiocco, J.)." Garcia v. Vasquez, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 348651 (May 8, 1998, Mottolese, J.).
General Statutes § 52-593a(a) provides: "Except in the case of an appeal of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of time limited by law within which the action may be brought, if the process to be served is personally delivered to an officer authorized to serve the process or is personally delivered to the office of any sheriff within the time limited by law, and the process is served, as provided by law, within fifteen days of the delivery."
The plaintiffs argue in their consolidated response that December 12, 1998 was a Saturday, and therefore they could timely deliver process to the sheriff on the following Monday, December 14, 1998, pursuant to General Statutes § 51-347c, which provides: "If the last day for filing of any matter in the clerk's office of the Superior Court falls on a day on which such office is closed, the last day for such filing shall be the next business day." Section 51-347c does not apply to the circumstances here because the plaintiffs did not have to file anything in the clerk's office to take advantage of § 52-593a, but had only to deliver service of process to the sheriff's office.
Accordingly, the defendants' motions to dismiss the plaintiffs' complaint is granted for lack of jurisdiction. See Biro v. Sidley Austin, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 149415 (October 1, 1996, Tobin, J.) ( 17 Conn. L. Rptr. 629) (failure to meet requirements of § 52-592 could be considered a jurisdictional bar because where a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period).
Although Lerner has not filed a motion to dismiss, the court does not have subject matter jurisdiction over the claims made against him, and therefore the claims against Lerner are also dismissed. See Glastonbury Volunteer Ambulance Assn., Inc. v. FOIC, 227 Conn. 848, 851, 633 A.2d 305 (1993) (trial court can determine sua sponte that its subject matter is in question).
SKOLNICK, J.