Johnson v. Preleski
166 A.3d 783
| Conn. App. Ct. | 2017Background
- Petitioner Anthony Johnson was convicted of murder and sentenced on August 5, 2011; § 52-582’s three-year limitation to file a petition for a new trial expired August 5, 2014.
- On August 5, 2014, counsel’s office faxed the writ, summons, and petition to state marshal Charles Lilley’s office at 5:01 p.m.; Lilley served the process on the respondent on August 6, 2014.
- Petitioner commenced the petition for a new trial on August 6, 2014 and invoked General Statutes § 52-593a (the savings statute) to argue the action was saved because the process was delivered to a marshal within the limitations period and served within 30 days.
- The marshal’s return did not state the date he received the process, and Lilley testified he could not confirm he personally received the documents on August 5.
- Trial court found fax transmission did not prove personal delivery to the marshal within the statutory period and dismissed the petition as time-barred under § 52-582.
Issues
| Issue | Petitioner's Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether process was "personally delivered to a state marshal" under § 52-593a when counsel faxed documents to the marshal's office on the last day of the limitations period | Faxing to marshal’s office on Aug 5 constituted delivery to marshal and § 52-593a should be liberally construed to save the action | Personal delivery requires receipt into the marshal’s physical possession; fax did not establish that | Fax transmission did not demonstrate personal delivery; § 52-593a not available — petition time-barred |
| Whether the marshal’s failure to endorse the date of delivery on his return under § 52-593a(b) is fatal | The endorsement requirement is directory, not mandatory; other evidence could show delivery date | Even if directory, absence of endorsement left no proof marshal received process on Aug 5 | Endorsement omission is not automatically fatal, but here lack of evidence of timely personal delivery defeated petitioner’s claim |
| Whether § 52-593a’s remedial purpose justifies liberal construction to include electronic or mailed delivery without proof of possession | Statute’s remedial purpose supports liberal interpretation to avoid unfairness to litigants | Statute cannot be read to vitiate clear requirement that the marshal actually receive process within the period | Remedial nature considered, but statutory requirements (actual receipt) must be satisfied; liberal construction does not override plain meaning |
| Whether the petitioner proved compliance with the saving statute to overcome the statute of limitations | Presented fax cover sheet and testimony; argued substantial conformity suffices | Argued testimony and return did not show personal receipt by marshal on Aug 5 | Court required evidence that process came into marshal’s possession by Aug 5; petitioner failed to prove that |
Key Cases Cited
- Tayco Corp. v. Planning & Zoning Comm'n, 294 Conn. 673 (2010) (statutory interpretation principles; consider text and context first)
- Dorry v. Garden, 313 Conn. 516 (2014) (savings statute is remedial and construed liberally for intended beneficiaries)
- Gianetti v. Connecticut Newspapers Publishing Co., 136 Conn. App. 67 (2012) ("personally delivered" requires receipt into the serving officer's physical possession)
- Dickerson v. Pincus, 154 Conn. App. 146 (2014) (marshal’s endorsement under § 52-593a(b) is directory, not jurisdictional)
- Doe v. West Hartford, 168 Conn. App. 354 (2016) (factual issues can preserve availability of § 52-593a when evidence supports timely delivery)
- State v. Johnson, 149 Conn. App. 816 (2014) (direct appeal of petitioner’s criminal conviction)