157 Conn.App. 617
Conn. App. Ct.2015Background
- Ribeiro sued a law firm and three third-party defendants (title insurers and Bank of America) for malpractice/contract-related claims arising from an easement drafted by the firm's attorney.
- Writ of summons and complaint dated March 26, 2013; return date on the writ was May 28, 2013 — two months and two days after signing, thus outside the two-month limit in Conn. Gen. Stat. § 52-48(b).
- Ribeiro filed a return of service with the Superior Court on May 21, 2013 (more than six days before the May 28 return date), complying with Conn. Gen. Stat. § 52-46a.
- Defendants moved to dismiss for lack of personal jurisdiction based on the defective return date. Ribeiro sought leave under Conn. Gen. Stat. § 52-72 to (1) serve an amended summons setting the return date to May 21, 2013, and (2) file that amended summons and complaint nunc pro tunc (retroactively) so the filing would comply with § 52-46a.
- Trial court denied relief (implicitly), concluded there was no date to which it could amend the return date and simultaneously comply with § 52-48(b) and § 52-46a, and dismissed for lack of personal jurisdiction. Justice Gruendel dissented, arguing § 52-72 should cure the technical defect and allow nunc pro tunc filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held (dissent view) |
|---|---|---|---|
| Whether § 52-72 permits curing a return-date defect by amending summons and filing the amended process nunc pro tunc so both § 52-48(b) and § 52-46a are satisfied | Ribeiro: § 52-72 is a remedial statute covering any defective civil process (including return date and return-to-court timing); he asked to serve amended process and file it nunc pro tunc to comply with § 52-46a | Defendants: § 52-72 does not reach the historical record/date process was returned; nunc pro tunc filing would improperly alter an historical fact and cannot cure the defect | Dissent: § 52-72 should be liberally construed to allow both amendment of return date and nunc pro tunc filing where defect is technical, no prejudice exists, and it furthers remedial purpose |
| Whether the defect is substantive (not curable) or technical (curable under § 52-72) | Ribeiro: defect is technical (late return date only); he complied with the statutory obligation to return process (albeit timing on writ was off) | Defendants: altering the return-to-court date would change an historical filing fact and affect jurisdictional prerequisites | Dissent: defect is technical; plaintiff did return process and defendants had actual notice and suffered no prejudice, so relief under § 52-72 is appropriate |
| Whether nunc pro tunc filing to correct the return-of-process date would prejudice defendants or affect substantive rights | Ribeiro: no prejudice; substantive allegations unchanged; defendants received timely notice | Defendants: nunc pro tunc filing improperly manipulates record; potential substantive consequences (argued) | Dissent: no prejudice shown; courts should avoid hypertechnical dismissals when remedial statute exists |
| Whether precedent (e.g., New England Road, Coppola, Concept Associates) supports curing return-date/untimely-return defects under § 52-72 | Ribeiro: prior cases applied § 52-72 to cure defective return dates or late returns; legislative edits broadened § 52-72 language | Defendants: rely on narrower readings and on Rogozinski dictum limiting certain statutory relief | Dissent: controlling precedent and remedial purpose favor allowing § 52-72 relief here |
Key Cases Cited
- Coppola v. Coppola, 243 Conn. 657 (1998) (held § 52-72 may be used to amend a return date to cure a late return of process and emphasized remedial purpose)
- Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618 (1994) (treated § 52-72 as mandatory and remedial to prevent loss of jurisdiction for defective return dates)
- New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180 (2013) (recognized § 52-72 has been applied to cure defects in return date or untimely return of process and analyzed limits between technical and substantive defects)
- Hartford Nat’l Bank & Trust Co. v. Tucker, 178 Conn. 472 (1979) (explained § 52-72’s purpose: to amend otherwise incurable jurisdictional defects)
- Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431 (1989) (addressed § 52-123 and suggested limits on curing service/return irregularities; discussed in dissent as distinguishable)
- Hillman v. Greenwich, 217 Conn. 520 (1991) (explained when failure to include required summons/citation is substantive and not curable under § 52-72)