Opinion
FSTCV175016825S
01-19-2018
Karl VOSSBRINCK v. Geraldine CHEVERKO et al.
UNPUBLISHED OPINION
Caption Date: January 18, 2018
OPINION
Jacobs, J.
BACKGROUND
On August 13, 2012, following a June 21, 2011 order of strict foreclosure of the plaintiff’s home in Southbury, Connecticut, and pursuant to a subsequent ejectment order, the plaintiff was ejected from his home. On June 29, 2017, the plaintiff, representing himself, filed a summons and a two-count complaint against the defendants Geraldine Cheverko, Berkshire Hathaway Home Services, Estelle Stevenson, and Safeguard Property Management, alleging the defendants’ civil theft and conversion of personal property owned by the plaintiff and left in the home at the time of the ejectment.
The court is cognizant of the plaintiff’s status as a self-represented litigant. The " construction of a self-represented party’s pleading should not focus on technical defects, but should afford the [plaintiff] a broad, realistic construction of the pleading ..." Coleman v. Commissioner of Correction, 137 Conn.App. 51, 55 n.1 (2012).
On August 9, 2017, the defendant Safeguard Property Management filed the current motion to dismiss the complaint, along with a supporting memorandum of law and exhibits [# 108]. On August 21, 2017, the plaintiff filed a response to the defendant’s motion to dismiss [# 109], and, on September 22, 2017, an amendment to his response [# 113]. On September 25, 2017, the court heard oral argument at short calendar.
DISCUSSION
" A motion to dismiss shall be used to assert ... lack of jurisdiction over the person ..." Practice Book § 10-30(a). " A motion to dismiss tests ... whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Fairfax Properties, Inc. v. Lyons, 72 Conn.App. 426 (2002). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730 (2014).
In the current case, the defendant moves to dismiss the complaint on the grounds that (1) the return date is not in compliance with Connecticut General Statutes § 52-48 and (2) the prayer for relief is not on a separate page from the remainder of the complaint and does not conform to the provisions of Connecticut General Statutes § 52-91.
Return Date
Connecticut General Statutes § 52-48 states, in relevant part, " Process in civil actions ... brought to the Superior Court may be returnable on any Tuesday in any month." Generally, " [a] defect in process ... implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388 (2011). " Thus, a motion to dismiss that attacks a defective return date, for example, implicates personal, rather than subject matter, jurisdiction, particularly because such a defect is curable." Adler v. Rosenthal, 163 Conn.App. 663 (2016). " [A] motion to dismiss that attacks a defective return date ... implicates personal, rather than subject matter, jurisdiction ..." Adler v. Rosenthal, supra, 163 Conn.App. 679.
A defective return date may be valid grounds for dismissal of an action. Coppola v. Coppola, 243 Conn. 657 (1998). However, " [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.) Boyles v. Preston, 68 Conn.App. 596 cert. denied, 261 Conn. 901 (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." Id., 606. Courts " [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.) Coppola v. Coppola, supra, 243 Conn. 666. " In determining whether a defect is merely circumstantial and not substantive, courts have considered ... 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 (2009); see also Boyles v. Preston, supra, 68 Conn.App. 606 (finding omission of return date on summons, when defendant given timely notice of claims, was circumstantial defect).
When pleadings have circumstantial defects, General Statutes § 52-72 allows a plaintiff to amend the pleadings. See New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180 (2013) (" we have applied § 52-72 to cure only technical defects in the return date or the late return of process to court"). " [T]he purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction." (Internal quotation marks omitted.) Id., 187. Section 52-72 is a remedial statute and must be liberally construed. Id. Even when a plaintiff fails to file an amendment to correct the return date, courts have ordered the plaintiff to file an amendment to correct the return date in accordance with § § 52-72 and 52-48(b). See Adamovich v. East Hartford, Superior Court, J.D. of Hartford, Docket No. CV-10-6012652-S (February 18, 2011, Peck, J.) (denying motion to dismiss, without prejudice, and ordering that plaintiff, who did not file motion to amend improper return date, file amendment to correct return date); see also Brandriff v. Sellas, 40 Conn.Supp. 243 (1985).
General Statutes § 52-72 provides in relevant part: " (a) Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective. (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."
" A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b)." (Internal quotation marks omitted.) Adler v. Rosenthal, supra, 163 Conn.App. 681.
In the instant case, the summons had a printed return date of June 20, 2017, which was a Tuesday, but it was scratched out and replaced with a handwritten date of July 10, 2017, which was a Monday. Although the new return date was not a Tuesday, the defendant received actual notice of the cause of action, suffered no prejudice, and filed an appearance by that return date. See Coppola v. Coppola, supra, 243 Conn. 666-67. This court finds that the improper return date is a circumstantial defect.
Prayer for Relief
Practice Book § 10-20 requires the prayer for relief to be on a separate page from the remainder of the complaint and, when money damages are sought, requires the information in the demand to conform to the provisions of § 52-91. Section 52-91 requires the damages sought to be categorized into three groups: (1) claims of $15,000 or more; (2) claims of $2,500 or more but less than $15,000; and (3) claims less than $2,500.
" To comply with [§ 52-91], a plaintiff need only state which of the three categories applies to the case ..." Southington ‘84 Associates v. Silver Dollar Stores, Inc., 237 Conn. 758 (1996). " A ‘catchall’ prayer for relief such as ‘such other relief as the court deems necessary and just’ is too amorphous to be a claim for money damages." (Internal quotation marks omitted.) Styslinger v. Brewster Park, LLC, 321 Conn. 312, 315 n.2 (2016). In Colon v. State, 129 Conn.App. 59, 65-66 (2011), the Appellate Court concluded that the failure to specify an amount in demand or to place the prayer for relief on a separate page was not a flaw requiring dismissal of the complaint. In Colon, the plaintiff filed a document titled " corrected revised complaint, " containing an ad damnum clause that was not on a separate page. Id., 62. The demand for relief also did not specify an amount sought by the plaintiff. Id., 62-63. The defect was circumstantial, the court reasoned, as it did not prejudice the defendant because the defendant appeared and was on notice about the claim for money damages. Id., 66-67. The court concluded that " termination of the plaintiff’s case was not a proper remedy for his failure to specify an amount in demand or failure to place the ad damnum clause on a separate page." Id., 67-68.; see also HOCAP Corp. v. Planning & Zoning Commission, Superior Court, J.D. of Fairfield, Docket No. CV- 07-4020726-S (September 12, 2007, Frankel, J.) (44 Conn.L.Rptr. 166, 167) (denying motion to dismiss on ground that plaintiff failed to place its prayer for relief on separate page because such defect was circumstantial and defendant was not prejudiced).
In the present case, the prayer for relief is not located on a separate page from the allegations in the complaint and lacks a specific amount in demand. However, the prayer for relief requests an award of " damages, " including " treble damages on that amount" and " all other appropriate and just relief." The defendant has appeared and is on notice that it may have to pay monetary damages should the plaintiff prevail. See id., 67. Finally, the plaintiff’s use of the phrase of " all other appropriate and just relief" is not a mere " catchall" phrase, but an extension of the monetary damages the plaintiff claims in his prayer for relief. As such, the defendant is not prejudiced by the plaintiff’s non-compliance with § 52-91.
CONCLUSION
The court denies the defendant’s motion to dismiss the complaint, without prejudice, and orders the plaintiff to file a request to amend the return date and the prayer for relief, pursuant to § 52-72, to conform with § § 52-48(b) and 52-91.