164 Conn. App. 439
Conn. App. Ct.2016Background
- Plaintiffs (parents and administrator of decedent) filed a medical malpractice action; summons dated April 1, 2013 with return date May 7, 2013. Service was effected August 29, 2013 and return to court occurred September 9, 2013.
- Defendants moved to dismiss for lack of personal jurisdiction, arguing plaintiffs failed to comply with General Statutes §§ 52-46 and 52-46a (timing of service and return) and that any proper amendment would violate § 52-48(b) (process must be returnable within two months of the date of the writ).
- Plaintiffs moved to amend the return date to October 29, 2013 and argued § 52-72 mandates amendment of defective process, § 52-123 favors merits, and defendants’ alleged misconduct (late records, office closure/dissolution) caused delay and should preclude dismissal.
- Trial court denied the amendment (concluding amended date would violate § 52-48(b)), found it lacked personal jurisdiction, and granted dismissal. Plaintiffs appealed.
- Appellate court reviewed statutory construction de novo and abuse-of-discretion for amendment rulings; it affirmed dismissal, holding (1) § 52-123 cannot cure irregularities in service/return, (2) ‘‘date of the process’’ means the writ date for § 52-48(b), and (3) plaintiffs’ delay—not defendants’ conduct—prevented timely service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred denying amendment of return date under § 52-72/Coppola | Amendment proper under § 52-72 and Coppola; court should cure return-date defect to reach merits | Amendment impermissible because amended return date must comply with § 52-48(b)’s two-month limit from the writ date | Denial affirmed: amended date (Oct. 29) violated § 52-48(b); amendment not proper |
| Whether § 52-123 allows curing late service/return | § 52-123 favors resolving cases on merits; should cure circumstantial defects | § 52-123 does not cure service/return irregularities governed by specific statutes | Held for defendants: § 52-123 cannot cure service/return timing defects |
| Whether court lacked personal jurisdiction due to noncompliance with §§ 52-46 and 52-46a | Plaintiffs claimed good-faith attempts and alleged defendants evaded service or caused delay through misconduct | Defendants: plaintiffs failed to follow mandatory statutory service/return rules; no jurisdiction | Held for defendants: failure to comply with mandatory timing statutes deprived court of personal jurisdiction |
| Whether defendants’ alleged misconduct (dissolution, late records, evasion) tolled statute or estops dismissal | Misconduct caused delay; doctrines (fraudulent concealment/equitable estoppel) should toll limitations or bar dismissal | Misconduct irrelevant to the jurisdictional service/return requirements; plaintiffs had alternative means (abode service) and information to effect service | Held: record did not support evasion; plaintiffs’ delay, not defendants’ conduct, caused noncompliance; tolling/estoppel not considered at motion-to-dismiss stage and would not rescue jurisdiction |
Key Cases Cited
- Coppola v. Coppola, 243 Conn. 657 (Conn. 1998) (§ 52-72 permits amendment of defective process but amended return date must comply with § 52-48(b))
- Haylett v. Commission on Human Rights & Opportunities, 207 Conn. 547 (Conn. 1988) (the "date of the process" refers to writ date for § 52-48(b))
- Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431 (Conn. 1989) (§ 52-123 cannot cure defects in service/return timing)
- Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn. App. 617 (Conn. App. 2015) (no permissible amended return date that complies with §§ 52-48(b) and 52-46a supports dismissal)
- Pedro v. Miller, 281 Conn. 112 (Conn. 2007) (when statute prescribes a method/timing of service, that method must be followed to confer personal jurisdiction)