Superior Court of Connecticut, Judicial District of Ansonia-Milford, Milford
MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANT'S MOTION TO DISMISS & APPORTIONMENT PLAINTIFF'S REQUEST TO AMEND APPORTIONMENT SUMMONS RETURN DATE (NOS. 118 & 122)
Barry K. Stevens, J.
This action was instituted by the plaintiff, Ana Reis, against the defendant Wal-Mart Stores East, LP, alleging that in July 2013, as an invitee to the defendant's store, she incurred injuries from a trip and fall caused by an accumulation of ice. Pursuant to General Statutes § 52-102b, Wal-Mart Stores East, as an apportionment plaintiff, served an apportionment complaint against the apportionment defendant, Southern Connecticut Ice & Oil, LLC. The apportionment complaint is dated February 19, 2015, and was served on March 17, 2015.
The apportionment complaint and the summons do not have a return date. The apportionment defendant has filed a motion to dismiss the complaint on the ground that the process fails to indicate a return date. The apportionment plaintiff has objected to this motion and has filed a request to amend the summons to include a return date of April 14, 2015. For the following reasons, the motion to dismiss is denied, the objection to this motion is sustained and the request to amend is granted.
As stated above, the apportionment defendant moves to dismiss the apportionment complaint because the summons accompanying the complaint does not contain a return date. Although this defendant states that this defect affects the court's subject matter jurisdiction, the established law is that a defect in process, including a defect involving a return date, implicates the court's personal jurisdiction. " Our Supreme Court has stated that a defect in process implicates personal jurisdiction. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31-33, 848 A.2d 418 (2004) (holding that noncompliance with General Statutes § 52-102b, which requires service of apportionment complaint within 120 days after return date of original complaint, implicated personal jurisdiction); see also Bohonnon Law Firm, LLC v. Baxter, 131 Conn.App. 371, 377-78, 27 A.3d 384 and n.9 (concluding that defendant's claim of defective process based on failure to establish return date and failure of service and return within statutory time frames implicated personal jurisdiction), cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011)." Willamette Management Associates, Inc. v. Palczynski, 134 Conn.App. 58, 65-66, 38 A.3d 1212 (2012).
" A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Constr. Co. v. Dep't of Pub. Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).
The apportionment defendant correctly states that the summons at issue is defective. Under General Statutes § 52-45a, the commencement of a civil action requires a summons to indicate a return date. In response to the motion to dismiss, the apportionment plaintiff acknowledges this legal deficiency, but insists that the defect is curable under General Statutes § 52-72. Its objection to the motion to dismiss is accompanied by a request to amend the summons to provide a return date of April 14, 2015.
The legislative intent and history behind § 52-72 was extensively discussed by our Supreme Court in Coppola v. Coppola, 243 Conn. 657, 662-65, 707 A.2d 281 (1998), and need not be reiterated here. Additionally, the law clearly establishes that the court may entertain a motion to amend a defective return date while a motion to dismiss based on this defect is pending.
Section 52-72(a) provides in relevant part that " any court shall allow a proper amendment to civil process which is for any reason defective." This statute is remedial in nature and should be liberally construed. The statute provides for amendment of otherwise incurable jurisdictional defects and prevents abatement of a case merely because of a defective return date. Coppola v. Coppola, supra, 243 Conn. 665. Furthermore, the apportionment defendant does not claim that it was not served or did not receive actual, timely notice of the apportionment complaint. Thus, the court concludes that the apportionment plaintiff's request to amend the summons to indicate a return date of April 14, 2015, should be granted, and with this amendment, the motion to dismiss should be denied.
The apportionment defendant's arguments to the contrary are rejected. The defendant first argues that the only case applying General Statutes § 52-72(a) to remedy a defective return date of an apportionment complaint is Judge Arnold's decision in Vissicchio v. Greenspan, Superior Court, judicial district of New Haven, Docket No. CV-03-0480706-S, 2004 Conn. Super. LEXIS 1111 (May 3, 2004, Arnold, J.), and that this case supports the dismissal of the apportionment complaint. The apportionment defendant is wrong in both respects. Numerous cases have applied General Statutes § 52-72 to cure process defects in apportionment actions, as " [t]here is no rationale that would support treating a request to amend a return date on an apportionment complaint any different from a request to amend a return date on an original complaint." Taylor v. Gristmill Commons Condominium Assoc., Inc., Superior Court, judicial district of New Britain, Docket No. CV-08-5009111 (May 5, 2009, Pittman, J.) (47 Conn. L. Rptr. 744, 2009 Conn. Super. LEXIS 1196); accord Lopes v. Walgreen Eastern Co., Superior Court, judicial district of New Haven, Docket No. CV-09-6004995, 2010 Conn. Super. LEXIS 2856 (November 4, 2010, Zoarski, J.T.R.).
Furthermore, the case of Vissicchio v. Greenspan, supra, Superior Court, Docket No. CV03-0480706-S, is distinguishable, and in any event, not controlling. In Vissicchio, the apportionment complaint was not appropriately served and neither indicated a return date nor included a summons. Id. Consequently, the court in that case concluded that the return date could not be amended under General Statutes § 52-72 because there was no summons to amend. Id. In the present case, the apportionment defendant cannot claim that it did not receive actual notice of the apportionment plaintiff's claims through a summons and a complaint that were timely and appropriately served.
The apportionment defendant next argues that although § 52-72 may be used to amend an incorrect return date, it cannot be used to add a missing return date. Most courts reject this argument and conclude that § 52-72 may be used to add a return date to a summons lacking one. Rouleau v. Walter D. Sullivan Co., Inc., Superior Court, judicial district of Hartford, Docket No. 02-0821210 (November 26, 2003, Wagner, J.) (36 Conn. L. Rptr. 75, 2003 Conn. Super. LEXIS 3351).
The apportionment defendant's final argument is that § 52-102b(d) provides the original plaintiff, Ana Reis, the opportunity to file a complaint against the apportionment defendant, when, as may be the case here, the applicable statute of limitations has otherwise expired. Section 52-102b(d), however, requires such a complaint to be filed by the plaintiff " within sixty days of the return date of the apportionment complaint . . ." Thus, the apportionment defendant argues that the court must dismiss the apportionment complaint because an amendment changing the return date to April 14, 2015, would prejudice the plaintiff by precluding her from pleading against it as the sixty-day time limit has now elapsed. The court must reject this argument. The apportionment defendant lacks standing to advocate in favor of the plaintiff or on her behalf. The plaintiff Reis has not objected to the apportionment plaintiff's request to amend the summons in order to add the April 14, 2015 return date.
Moreover, although the time limits of § 52-102b are mandatory, their application is subject to equitable considerations. See Pedro v. Miller, 281 Conn. 112, 118-21, 914 A.2d 524 (2007) (applying equitable considerations to toll the 120-day service period of § 52-102b[a]]; Lopes v. Walgreen Eastern Co., supra, Superior Court, Docket No. CV-09-6004995 (applying equitable considerations to evaluate whether to toll the 60-day service period of § 52-102b[d]]. The plaintiff has neither expressed an intent to assert a claim against the apportionment defendant, nor requested additional time to assert such a claim. The court must consider such issues from the party who has the interest in them and the standing to assert them, and that party is not the apportionment defendant.
Therefore, the apportionment plaintiff's request to amend the summons and add a return date of April 14, 2015, is granted. The apportionment defendant's motion to dismiss is ...