Dickerson v. Pincus, 154 Conn. App. 146

Background

Decedent died July 22, 2008; wrongful-death suit (Conn. Gen. Stat. § 52-555) was filed by Donnie Dickerson as administrator.
Plaintiff obtained a 90-day automatic extension under § 52-190a(b), making service deadline October 20, 2010.
Marshal’s original return showed service on Jayne Pincus under a heading dated October 19, 2010, and further service on Connecticut Health of Greenwich under a heading dated October 28, 2010.
Defendant moved to dismiss for lack of subject-matter jurisdiction, asserting service on the defendant occurred October 28, 2010 (after the limitations deadline).
Trial court granted the motion, reasoning the marshal’s return did not comply with § 52-593a(b) because it failed to state under oath the date process was delivered to the marshal, so the savings statute did not apply.
On appeal the court held the return, read as a whole, showed process was delivered to the marshal on October 19, 2010 and that the marshal served the defendant within 30 days, so § 52-593a saved the action; the trial court’s dismissal was reversed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 52-593a saves the action despite marshal’s return lacking an explicit sworn delivery date	Marshal’s return and summons show process was delivered to the marshal on Oct. 19, 2010, within the limitations period, and service on defendant occurred within 30 days	Return is deficient under § 52-593a(b) because it fails to endorse under oath the date process was delivered; without that compliance the savings statute cannot apply	Court held return, construed as a whole, showed delivery on Oct. 19, 2010 and service within 30 days; § 52-593a is remedial and subsection (b) is directory, so the action was saved
Whether noncompliance with § 52-593a(b) is jurisdictional/fatal	Noncompliance is not fatal where the return leaves no reasonable doubt that delivery occurred within the limitations period	Noncompliance with subsection (b) deprives the court of jurisdiction to hear otherwise time-barred claims	Court ruled subsection (b) is directory, not jurisdictional; imperfect endorsement did not defeat the remedial purpose of § 52-593a
Whether the marshal’s return may be supplemented by attorney-signed summons or an amended return	The signed summons (dated Oct. 19, 2010) and the wording “further service of the within original” reasonably show delivery and subsequent service	Defendant emphasized need for strict compliance with statutory endorsement requirement	Court relied on totality of documents (return and signed summons) to infer timely delivery and service; amended return sought below was unnecessary to establish saving statute elements
Whether dismissal for lack of subject-matter jurisdiction was appropriate	Plaintiff argued dismissal was erroneous because subject-matter jurisdiction exists when savings statute applies	Defendant argued absence of statutory endorsement meant court lacked jurisdiction due to time bar in wrongful-death statute	Court reversed dismissal, finding jurisdiction appropriate because § 52-593a applied to save the action

Key Cases Cited

Hillman v. Greenwich, 217 Conn. 520, 587 A.2d 99 (Conn. 1991) (service date controls when action is brought)
Dayner v. Archdiocese of Hartford, 301 Conn. 759, 23 A.3d 1192 (Conn. 2011) (standard of review for motions to dismiss for lack of subject-matter jurisdiction)
Knipple v. Viking Communications, Ltd., 236 Conn. 602, 674 A.2d 426 (Conn. 1996) (presumption of truth afforded to marshal’s return)
Dorry v. Garden, 313 Conn. 516, 98 A.3d 55 (Conn. 2014) (§ 52-593a is remedial and should be liberally construed to salvage actions)
Gianetti v. Connecticut Newspapers Publishing Co., 136 Conn. App. 67, 44 A.3d 191 (Conn. App. 2012) (absence of evidence that marshal received process within the prescribed period is fatal to invoking savings statute)
State v. Chambers, 296 Conn. 397, 994 A.2d 1248 (Conn. 2010) (courts may rely on attorneys’ representations where appropriate)